HOSSAINARA BEGAM Vs. RAHIMANNESSA BEGAM

JUDGEMENT

(1.) This is an appeal on behalf of the defendants in a suit to enforce two mortgage securities. There is no controversy is to the circumstances under which the plaintiffs seek to recover the disputed amount, and they may be briefly narrated. On the 9 June 1894, Akbar Shiko, the father of the two defendants, executed a mortgage bond in favour of one Amir Jan. The principal sum advanced was Rs. 200 and carried interest at the rate of 24 per cent, per annum. The loan was repayable on the 16 October 1894. On the 24 September 1894, the mortgagor executed a second mortgage in favour of Ali Ashgar and Ali Naki as security for a loan of Rs. 200 which carried interest at the same rate, and was made repayable on the 14th March 1896. On the 17 February 1896, Amir Jan, the first mortgagee, transferred his security to the second mortgagees Ali Ashgar and Ali Naki. The result was that the second mortgagees thus became the holders of both the first and second securities. On the 3 July 1896, the mortgagor, Akbar Shiko, died leaving, as his heirs, an infant daughter and an infant son who are the defendants in the present litigation. Immediately after this, Ali Naki, one of the mortgagees who was apparently related to the mortgagor, was, upon his own application, appointed guardian of the person and property of the infant son and daughter of the mortgagor. In 1897, Ali Naki also took out letters of administration to the estate of the mortgagor. The materials on the record indicate that at the time of the institution of the present suit he had not ceased to act as administrator, though on the 2 March, 1906, he was discharged from his office of guardian of the person and property of the infants. On the 11th October 1897, the other mortgagee, Ali Ashgar, died. Ali Naki, who was related to him, took out a succession certificate to collect the debts due to his estate, but in 1902 the plaintiff took out letters of administration. On the 22 October, 1906, that is a few days before the expiry of twelve years from the date on which the mortgage money due under the first security was repayable, the plaintiff as administrator to the estate of Ali Ashgar commenced the present action for recovery of Rs. 1,524 upon both the securities. She joined as defendants the son and daughter of the mortgagor Akbar Shiko. She also joined as a pro forma defendant the co- mortgagee Ali Naki, upon the allegation that he had refused to join as a plaintiff. The mortgagee thus made a pro forma defendant, pleaded that he had always been ready to join the plaintiff, whereupon, on the 20 December 1906, his name was transferred from the category of pro forma defendant to that of plaintiff. The claim was resisted by the son and daughter of the mortgagor, substantially on four grounds; namely, first, that the claim was barred by limitation; secondly, that the suit was not properly framed as it ought to have been instituted against the administrator Ali Naki; thirdly, that the mortgage debts had been extinguished inasmuch as administration to the estate of the mortgagor had been granted in favour of one of the two mortgagees, who as administrator received ample funds for repayment of the debt; and, fourthly, that even if the principal sums were shown to be recoverable, the claim for interest could not be sustained. The original Court overruled all these contentions and made the usual decree for sale against the defendant. Upon appeal, the learned District Judge, has affirmed this decision. The defendants have now appealed to this Court, and on their behalf the decision of the District Judge has been assailed on four grounds: namely, first, that the effect of the grant of letters of administration to one of the mortgagees, was to extinguish the entire mortgage debt; secondly, that the claim could not be sustained against the heirs of the mortgagor, so long at any rate,, as the administration continued in force; thirdly, that the claim is, in part at least, barred by limitation, because if the plaint is deemed to have been presented on the day when Ali Naki was transferred from the category of defendant to that of plaintiff, the suit was clearly instituted after the lapse of twelve years from the due date on the first mortgage; and, fourthly, that even if all these objections fail, the plaintiffs are not entitled to claim any interest on the mortgage securities after the date of the appointment of Ali Naki as administrator to the estate of their father and as guardian of their own persons and properties.

(2.) In support of the first ground taken on behalf of the appellants, it has been argued that if a creditor takes out letters of administration to the estate of his debtor, although this alone may not operate as an extinguishment of the debt, if the debtor has assets which the creditor may retain to pay himself, it is extinguishment, for possession of assets amounts to payment. This contention has been sought to be supported by reference to a passage from Williams on Executors, 10 edition, Vol. I, page 1058, and to the decision in Wank ford V/s. Wanhford (1608) 1 Salkeld 299, 305. This position need not be controverted, and may be maintained on the principle that there is an extinguishment of the debt if the person who is to receive the money is also the person who ought to pay. To put the matter in another way, if there are no assets, the administrator is not the person who ought to pay, though he is the person that is to receive the debt which is thus not extinguished except upon the supposition that the administrator has assets which he may retain to pay himself. The doctrine would be applicable to this case, notwithstanding the decision in Binns V/s. Nichols (1866) L.R. 2 Eq. 256 and Dexter V/s. Arnold (1823) 3 Mason 284, because, in so far as the estate vested in an administrator in this country is concerned, there is not, in this respect, a distinction between real estate and personal estate. The question, however, which requires consideration here is, whether this doctrine is applicable when the person who takes out administration is one of two joint creditors. The learned Vakil for the defendants-appellants has invited us to give an affirmative answer upon the authority of the decisions in Lowe V/s. Pekhett (1855) 16 C.B. 500 and Richards V/s. Molony (1850) 2 Ir. Ch. Pep. 1. The first of these cases is clearly distinguishable, and is an authority for the proposition that the doctrine of extinguishment of a debt by reason of the appointment of a creditor as the administrator to the estate of his debtor, has no application unless the administrator has in his hands legal assets presently available; the existence of equitable assets, not presently available, does not operate as a release or extinguishment of the debt. No doubt, in that case, whereas two persons were appointed executors, the debt was payable to one of them only; but the decision was founded on the ground that the assets of the testator which came into the hands of the creditor executor were not legal assets presently available, and the rule could not be applied that "if tire testator makes his creditor his executor the action shall be released, but the debt remains for which he may retain." The second case, however, Richards V/s. Molony (1850) 2 Ir. Ch. Pep. 1, upon which the learned Vakil for the appellant relies, does appear to support his contention. In that case it was ruled by Lord Chancellor Brady that the principle, that where the obligee in a bond becomes executor of the obligor and receives assets adequate to discharge the debt, it is extinguished, is applicable where one only of two obligees is appointed one of several executors of the obligor; it was further ruled that this principle prevails in law as well as in equity and is applicable albiet the obliges are trustees. It is to be observed, however, that although this case is mentioned as an authority in Williams on Executors (vol. 1, page 1059), it has been subsequently overruled by the Judicial Committee of the Privy Council in Ireland in the lease of In re Carew (1854) 4 Ir. Ch. Rep. 112. There an obligor in a bond, with notice of the trust, appointed one of the two obligees who were trustees, as executors, and devised his real estate to him subject to his debts. The executor received personal assets sufficient to pay the bond debt, but wasted them. It was ruled that the debt was not extinguished and might be enforced against the real estate. Blackburn J., who delivered the opinion of the Judicial Committee, held with the concurrence of Lord Chancellor Brady, Mohanan C.J., Keatinge J., and Napier J., that the case of Richards V/s. Molony (1850) 2 Ir. Ch. Rep. 1 had been erroneously decided. This Conclusion was founded on the ground that as payment to one of the creditors trustees could not operate to release the debtor, there could not be constructive satisfaction of the rights of those beneficially entitled to the money, merely because one of the trustees had been appointed executor of the debtor. In our opinion, this view is manifestly well founded on principle. The learned vakil for the appellants has, however, contended upon the authority of the decision of the Madras High Court in Barber Maran V/s. Ramana Goundan (1897) I.L.R. 20 Mad. 461 that where there are several persons who on the face of the instrument of mortgage are joint creditors, payment to one of them is a good discharge as against all (Jones on Mortgages, Section 135, 958). This proposition, in our opinion, is too broadly formulated. As was pointed out by this Court in the case of Harihar Pershad V/s. Bholi Pershad (907) 6 C.L.J. 383, 394, when a claim is on a money bond to two or more obligees, the presumption at equity is that the obligees are tenants in common, and not joint tenants of the debt, with the consequence that the discharge by one obligee cannot be set up as a defence as against the other obligee suing for his share of the debt. The principle applicable to the case before us appears to be that payment to one of two joint-mortgagees A does not necessarily operate as a discharge of the debt in so far as the other mortgagee is concerned. Equity presumes that several persons together making an advance upon the security of a mortgage have separate interests in the money, and accordingly withholds relief from the mortgagor when in disregard of the terms of the proviso for redemption, he has made a payment to one mortgagee and not to both : Matson V/s. Dennis (1864) 4 De J. & S. 345, Vickers V/s. Cowell (1839) I Beav. 529, Smith V/s. Sibthorpe (1887) 34 Ch. D. 732, Powell v. Brodhurst [1901] 2 Ch. 160, which must be taken to have considerably shaken the authority of Wallace V/s. Kelsall (1840) 7 M. & W. 246. In the case before us, we must apply the doctrine stated by Wills J. in Steeds V/s. Steeds (1889) 22 Q.B.W. 537, citing from Lord Alvanley M.R. in Morley V/s. Bird (1798) 3 Ves. 628, 631, that although the mortgagees take a joint security, each means to lend his own money and to take back his own. There is nothing to indicate that the intention of the parties was that each of the persons in whose favour the mortgage obligation was created, was a creditor for the whole. Consequently, t it cannot be presumed that the payment to one would liberate the debtor against all the creditors : on the other hand the presumption is that each was a creditor for his own share and could not give a discharge for the whole obligation : Sitaram V/s. Shridhar (1903) I.L.R. 27 Bom. 292, and Tamman Singh V/s. Lachhmin Kinwari (1904) I.L.R. 26 All. 318. On principle as well as on authority, therefore, we must hold that in the case before us the appointment of one of the mortgagees as administrator to estate of the mortgagor did not extinguish the right of action of the mortgagee other than the one who was so appointed administrator and had assets in his hands sufficient to satisfy his share of the mortgage debt. The first point urged on behalf of the appellants must consequently succeed in part, that is, in so far as the mortgagee administrator Ali Naki is concerned but it must be overruled in so far as the representative of the other mortgagee is concerned.

(3.) In So far as the second ground urged on behalf of the appellants is concerned, it has been argued that the mortgagee other than he administrator who alone, in the view we take, is competent to sue to recover his share of the mortgage money, was bound to bring his suit not against the heirs of the mortgagor but against the administrator in whom the estate of the mortgagor is vested. This argument is, in our opinion, well-founded. The effect of the appointment of Ali Naki as administrator to the estate of the deceased was to vest in him the estate under Section 4 of the Probate and Administration Act of 1881. The object of the mortgage suit is to cut off the equity of redemption which is now vested in the administrator as the legal representative of the mortgagor. He is, besides, the person in possession of funds by means of which the mortgage debt may be satisfied. It is difficult to appreciate how, under these circumstances, the claim may be enforced against the son and daughter of the mortgagor. It may be conceded that under Order XXXI, Rule 1 of the. Civil Procedure Code of 1908, in all suits concerning property vested in an administrator or a trustee, although the administrator represents the beneficiaries and it is consequently not ordinarily necessary to make them parties to the suit, yet the Court may, if it thinks fit, order them or any of them to be made parties. This clearly contemplates cases, when for instance as in Clegg V/s. Rowland (1866) L.R. 3 Eq. 368, 373, the trustee is wholly uninterested in the case, or as in Beresford V/s. Ramasubba (1889) I.L.R. 13 Mad. 197, the trustee has an interest adverse to that of the beneficiary. But clearly in the case before us there is no conceivable reason why the mortgagee other than the administrator should not seek to enforce his security against the property in the hands of the administrator. Reliance was placed by the learned Vakil for the respondent upon the ease of Francis V/s. Harrison (1889) 43 Ch. D. 183, where it was ruled that a mortgagee who is a trustee of Ids mortgage for the beneficial A owners of the mortgage money, and who has become bankrupt cannot, as defendant to a foreclosure action by a prior mortgagee, properly represent the beneficiaries who are necessary parties to the action notwithstanding Order XVI, Rule 8 of the Rules of the Supreme Court, 1883. This principle has clearly no application to the circumstances of the case before us, But it is worthy of remark, as pointed out in, the case of Jaggeswar Dutt V/s. Bhuban Mohan Mitra (1906) I.L.R. 33 Cal. 425, 437, that since the date of this decision the rule in England has been modified, so as practically to overrule it, We must hold, therefore, that the suit has been improperly framed and cannot be maintained against the son and daughter of the mortgagor. The objection was urged by the defendants at the earliest possible stage of the proceedings, but was overruled on erroneous grounds, and it was supposed that the cases of Morley V/s. Hurley (1856) 25 Beav. 253, and Francis Vs. Harrison (1890) 43 Ch. D. 183, justify the frame of the suit. It is impossible at the present stage to make the administrator a defendant to the suit, because any suit now instituted against him would be successfully met by the plea of limitation. We therefore allow the second objection to prevail and hold that the suit is not maintainable against the heirs of the mortgagor, because the administrator has not been joined as party defendant.