BHOLA NATH JANA Vs. HARA MOHAN JANA

JUDGEMENT

(1.) The appellants, Bhola Nath Jana and Abhoy Jana, who were defendants Nos. 1 and 2 in the original Court, mortgaged certain properties in the year 1895 to Kokil Das and another, defendants Nos. 3 and 4. In 1901, they next, without disclosing the existence of a prior mortgage, executed an usufructuary mortgage in favour of the plaintiff-respondent, Hara Mohan Jana, and put the latter into possession. The first mortgagees then sued the mortgagors, on their mortgage, obtained a decree, and in execution thereof succeeded in ousting the usufructuary mortgagee, who thereupon brought the suit in the Court of the Munsif of Tamluk out of which this appeal has arisen, against the mortgagors and the first mortgagees. In that case the plaintiff came to an understanding with the first mortgagees, defendants Nos. 3 and 4 and in pursuance thereof, asked for and obtained against the mortgagors, defendants Nos. 1 and 2, a money-decree, which has been confirmed on appeal by the District Judge.

(2.) The mortgagors have now appealed to this Court, and, on their behalf, the frame of the suit has first been attacked, and it has also been argued that the suit ought not to have been decreed against the appellants on the basis of a solenamah to which they were not parties. The plaint was, no doubt, badly drawn, and as a matter strictissimi juris, it ought to have been amended; but we agree with the learned District Judge in thinking that the suit should not be allowed to fail on this ground. And, as regards the solenamah, the reply to the appellant's contention is that the decree was clearly given, not on the basis of the compromise, bat on the merits of the plaintiff respondent's case. The only substantial question involved is that which has been raised throughout and relates to the right of the plaintiff-respondent, who was an usufructuary mortgagee, to obtain a personal decree against his mortgagors.

(3.) On this point we are of opinion that there can be no doubt as to the legality and justice of the decree. The case is manifestly covered by 68 of the Transfer of Property Act, 1882, Clause (b), if not also by either of the other clauses. A breach of any of the obligations imposed on the mortgagor by 65 of the Act would seem to amount to a wrongful default and would, under 68, entitle the mortgagee to sue for the recovery of his money, see Radha Churn Shaha v. Parbultee Churn Dutt 25 W.R. 52, where the general principle is laid down, and Singjee v. Tiruvengadam 13 M. 192. Here the mortgagors failed to disclose the existence of a prior encumbrance, and, as we have said, Clause (b) of 68, certainly applies. And it is useless for the appellants to urge that this result is inequitable to them, for they who seek equity must do equity, and the appellants have put themselves out of Court by their own conduct.