FOZMAL BHUTAJI Vs. SHRIDHAR VITHAL

JUDGEMENT

(1.) TWO brothers, one Vithal Ramchandra Parulkar and another Vishnu. Ramchandra Parulkar, had monetary dealings with a firm of money lenders by name Himmatmal Manji & Co. commencing from sometime prior to November 17, 1922v The account in respect of these monetary dealings was maintained in the joint names, of Vithal Ramchandra Parulkar and Vishnu Ramchandra Parulkar in the books of account of Messrs. Himmatmal Manji & Co. This account was adjusted on or about November 17, 1922, when a sum of Rs. 25,150 was found due and owing by the two brothers to the firm of Messrs. Himmatmal Manji & Co. as of that date. On the same date the adjustment was recorded in the books of account of Messrs. Himmatmal Manji & Co. showing the said sum of Rs. 25,150 as due by both of them "personal debts to the account of both till today, November 17, 1922. " Signatures of both of them were appended at the foot of this adjustment. On the same day it was agreed between the firm of Messrs. Himmatmal Manji & Co. and the two brothers that they should execute in consideration of a sum of Rs. 17,500, being part of the said sum of Rs. 25,150 found due by them to the firm at the foot of that adjustment, a mortgage of their immoveable property situate at Bassein and as a part and parcel of that adjustment an indenture of mortgage was executed by the two brothers in favour of the three partners of the firm of Messrs. Himmatmal Manji & Co. , viz. Fojmal Bhutaji, Joharmal Fuaji and Pokhraj Himmatmal, mortgaging their property situate at Bassein to secure repayment of the said sum of Rs. 17,500 with interest thereon as stipulated therein. As regards the balance of Rs. 7,650 which remained over out of the said sum of Rs. 25,150, the two brothers executed on November 17, 1922, an agreement whereby they agreed to pay the said sum in the manner therein mentioned. A post-dated cheque for the said sum of Rs. 7,650 was given by the two brothers to the firm of Messrs. Himmatmal Manji & Co. , and in default of their honouring the cheque on the due date thereof, the two brothers agreed to execute in favour of Messrs. Himmatmal Manji & Co. a mortgage of another property belonging to them and situate at Ratnagiri. I may state that the said cheque was not honoured, the two brothers executed in favour of Messrs. Himmatmal Manji & Co. a mortgage of their property at Ratnagiri and the said amount was recovered by Messrs. Himmatmal Manji & Co. by subsequently selling that property.

(2.) THE due date for repayment of the amount under the indenture of mortgage dated November 17, 1922, was November 16, 1923. THE two brothers failed and neglected to pay the amount on the due date for repayment thereof and failed and neglected to make any payment of interest either. THE family consisted of four brothers, Vithal and Vishnu the two brothers who had executed this mortgage and two others Shankar Ramchandra Parulkar and Bhaskar Ramchandra Parulkar who were at their native place. In the year 1929 a suit was filed by Shankar being suit No.299 of 1929 in the Court at Deogad for a partition of the property, the subject-matter of the mortgage. THE firm of Messrs. Himmatmal Manji & Co. were made co-defendants in that suit inasmuch as it was sought to be declared in that suit that the mortgage which had been executed of this property by Vithal and Vishnu in Bombay in favour of Messrs. Himmatmal Manji & Co. was not binding on Shankar and the other brother Bhaskar. This, suit was contested inter alia by Messrs. Himmatmal Manji & Co. Owing, however, to insufficiency of evidence put forward on behalf of Messrs. Himmatmal Manji & Co. the Court came to a conclusion adverse to their contentions. It was declared in the decree which was passed in that suit No.299 of 1929 in the Deogad Court on February 10, 1931, that Vithal and Vishnu were each of them entitled to a one-fourth share in the property, the subject-matter of the mortgage dated November 17, 1922, and that the mortgage executed by Vithal and Vishnu did not bind the interest of the other members of the family, viz. Shankar and Bhaskar. Messrs. Himmatmal Manji & Co. filed an appeal against this decree which was dismissed by the Appeal Court on June 17, 1933. THEy filed a second appeal in the High Court here which also was dismissed by the High Court on April 12, 1937, thus confirming the decree which was passed by the Court at Deogad on February 10, 1931.

(3.) WHEN the plaint came to be filed, not much attention seems to have been devoted to the question whether the right, title and interest of the surviving; members of the joint family belonging to Vithal's branch could be made liable for the payment of the debt due under this indenture of mortgage. Nothing was stated in the plaint as to how the whole of the one-fourth share in this property belonging to Vithal's branch could be made liable for the payment of this debt, the only allegation, which was made in para, 11 of the plaint being that the shares of the said Vithal Ramchandra and Vishnu Ramchandra which are one-fourth each in the said property were and are validly mortgaged to the plaintiffs for repayment of the said sum; and the prayers of the plaint prayed inter alia for a declaration that the right, title and interest of the said Vithal Ramchandra and Vishnu Ramchandra are validly mortgaged to the plaintiffs as security for the said sum; and that the usual preliminary mortgage decree should be passed in respect of the right, title and interest of the said Vithal Ramchandra and Vishnu Ramchandra in the said mortgaged property. It was on this position that at the hearing two issues were raised on behalf of defendant No.1, viz. : (1) Whether the plaint discloses any cause of action against the first defendant ? and (2) Whether the suit was maintainable against the first defendant ?