BHUPATI BANERJEE Vs. BON BEHARY ROY

JUDGEMENT

(1.) This suit has raised a number of interesting points which have been argued before me with great clearness by learned Counsel on behalf of their respective clients. The plaintiff on 5 November 1938 advanced a sum of Rs. 8000 to defendants 1 and 2. These defendants are the two out of four brothers, who are jointly entitled to the premises known as 82/1/2, Cornwallis Street, and 4, Nalini Sircar Street. Defendants 5 and 6 are the remaining two brothers who have not yet attained majority and were made additional parties on 11th January 1940, when in the course of an application for a receiver the plaintiff ascertained that defendants 1 and 2 proposed to rely on certain proceedings in a family partition suit between the four brothers. The loan of 5 November 1938 was secured on the undivided half part or share of the two properties I have mentioned belonging to defendants 1 and 2 by a mortgage in the English form. On 6 December 1938 a deed of rectification was executed by the mortgagor and the two mortgagees by substituting interest at the rate of 7 per cent. per annum for the rate of 6 per cent. per annum set out in the deed of mortgage. The position of defendants 3 and 4, to whom I will refer as the Pachasia defendants, is this. They were plaintiffs in suit No. 1779 of 1938 which was instituted against a private company known as the Ben Nevis Co. Ltd., owned by the family of the other defendants in this suit and also against the defendants in this suit nomination. On 15 December 1938 a consent decree was made in accordance with certain terms of settlement. The 12 term is as follows: The undivided 1/4 share of the defendant, Bon Behary Roy, (i. e., defendant 1 in this suit), in premises No. 82/1/2, Cornwallis Street, is declared charged for payment to the plaintiffs by the defendant Bon Behary Roy of the sum of Rupees 3500 within two years from the date of filing of these terms of settlement with interest at the rate of 6 per cent. per annum with quarterly rests. The defendant Bon Behary Roy states and declares that his said 1/4 undivided share in the said premises is free from all encumbrances whatsoever save and except a mortgage for Rs. 8000 in favour of Bhupati Banerjee, (i. e., the plaintiff in this suit) executed by him jointly with the defendant Mritunjoy Roy (defendant 2 in this suit) whose undivided 1/4 share in the said premises is also included in the said mortgage. The defendant, Bon Behary Roy, will execute in favour of the plaintiffs a deed of mortgage in respect of his said undivided 1/4 share in the said premises No. 82/1/2, Cornwallis Street, Calcutta, for the due repayment of the said sum of Rs. 3500 as aforesaid within 10 days from the filing of these terms of settlement.

(2.) A certified copy of the decree and terms of settlement was registered on 31 January 1939. On that day the plaintiff advanced a further sum of Rs. 3689 to defendants 1 and 2. This sum was secured by an instrument which is described on its back-sheet as a further charge. At the moment I will not set out its terms, but merely say that it was registered on the day of its execution, i. e., on the same day as the certified copy of the terms of settlement in suit No. 1779 of 1938, although an hour or so later than the certified copy. It is now admitted that the date of the consent decree must be regarded as the date of the charge created thereby, and accordingly that charge is prior in point of time to the encumbrance created by the instrument of 31 January 1939. The position with regard to defendants 5 and 6, the minor brothers of defendants 1 and 2, is that on 14 September 1938 they instituted Suit No. 1776 of 1938 against their two elder brothers and the Ben Nevis Co. Ltd. The plaintiffs asked among other things for a declaration that a certain transfer was void and inoperative, but their suit is in essence a family partition suit for the shares of the parties are set out, and a declaration of those shares is asked for. There is also a prayer for discovery, partition and for necessary accounts and inquiries. This suit terminated in a compromise decree, the Court certifying that the compromise was for the benefit of the minors. The matter was referred to an arbitrator who was given power to take accounts and to effect the partition of the properties and to adjust the rights and liabilities of the parties inter se by allotment of the properties or otherwise.

(3.) The decree also provides that the major defendants right, title and interest in and to all their joint family properties shall stand charged for payment of whatever moneys may be found due and payable to the plaintiffs in that suit, i. e. defendants 5 and 6 in this suit. Defendants 1 and 2, although they have appeared and resisted the application for a receiver, have not filed a written statement. After the minor defendants had been made parties they entered appearance and they filed a written statement. The point which has been taken by them at the hearing is that this case is covered by Section 52, T. P. Act, which amounts to saying that Suit No. 1776, in which they were plaintiffs and which was pending at the time that the deed of mortgage and the instrument of further charge were executed is not collusive, and that a right to the immovable property dealt with by the two deeds I have mentioned was directly and specifically in question in that suit. I am of opinion that this argument ought not to prevail, because there was no contest as to the shares of the family members who were parties to the partition suit. Learned Counsel for the minor defendants points out that in a partition suit it is often the case that the Court, when accounts have been taken, to compensate for excess amounts drawn by one of the cosharers makes an adjustment by reducing the share of the immovable property allotted to him and proportionately increasing the shares allotted to other cosharers. That is undoubtedly the case, and it is well recognized that a person who advances money on the security of an undivided share in joint property runs the risk of this happening in partition proceedings instituted by the borrower or his cosharers. It does not follow from this that the ordinary partition suit where there is no contest as to the fractional share of the parties is a suit in which their rights to the immovable property are directly and specifically in question. Learned Counsel has relied on Jogendranath Gossain V/s. Debendranath Gossain ( 99) 26 Cal 127. The passage relied upon is the following: To obtain the benefits of his purchase and the rights incidental thereto the purchaser must seek the interventions of the Court and he will be hound by all the proceedings in the partition suit in this Court.