KRISHNAJIBAN SANYAL Vs. MAHAMMAD MASIUDDIN MANDAL

JUDGEMENT

(1.) The subject-matter of the litigation which has culminated in the first of these two appeals is a mortgage-bond executed on the 25 April 1904 by the ninth defendant Ichamayi Debi on behalf of her infant adopted son, the first defendant Krishnajiban Sanyal, in favour of one Sariat Ulla Mandal, a member of a Muhammadan family described in these proceedings as the Mandals of Biswanathpore in the District of Malda. The relationship of the different members of this family will appear from the following genealogical table:

(2.) The plaintiffs are the two sons and daughter of Sabaktulla, the brother of Sariatulla. They seek a declaration that although the mortgage-bond stands in the name of their uncle Sariatulla, the money advanced belonged to their father Sabaktulla, and they also pray for recovery of the mortgage money on this basis from the first defendant. The second, third, fourth and fifth defendants are the descendants of Sariatulla. The sixth defendant Gulzar is a first cousin of Sariatulla and Sabaktulla, and the position taken up by him is that the money belonged, neither to Sariatulla alone whose name appears as mortgagee on the fane of the "deed, nor to Sabaktulla alone as asserted by the plaintiffs, but to all the members of a joint family, that is, to himself and his two cousins. The substantial dispute may consequently be expected, in these circumstances, to be restricted to the members of the Mandal family and not to affect the mortgagor; for it would be immaterial to the latter who was the real creditor. It transpires, however, that on the 5 May 1911, three years after the death of Sariatulla, the mortgagor took a release of a two-thirds share of the mortgaged properties from Misarbi and Khatija, two of the three heirs of Sariatulla, on the basis of an alleged payment of Rs. 3,600 to them in settlement of their claim as representatives of the mortgagee. The mortgagor (first defendant) is consequently driven to repudiate the claim of the plaintiffs. The litigation has thus resulted in a triangular contest, amongst the representatives of Sabaktulla (plaintiffs), Gulzar (the cousin of Sabaktulla), and the mortgagor. The two heirs of Sariatulla, who granted the release of the 5 May lull, have not entered appearance; they have left the mortgagor, as might be anticipated, to support their title. The infant representatives of Kantu, the third heir of Sariatulla (who was not a party to the deed of release), have instituted a separate suit to enforce their alleged right against the mortgagor; but though not parties to the deed of release and consequently not bound thereby, they have adopted its terms to determine the amount due in their share, and the two suits have by consent of parties been tried together on the same evidence. The Subordinate Judge has found that the mortgage money belonged to Sabaktulla alone and that neither Sariatulla nor Gulzar had any concern therewith. He has farther found that no money was paid for the release. He has accordingly granted a mortgage- decree to the heirs of Sabaktulla and has, as a necessary corollary, dismissed the suit instituted by the grandsons of Sariatulla. Against these decrees, two appeals have been preferred, namely, Appeal No. 35 of 1919 and Appeal No. 127 of 1919. In the former of these appeals, the mortgagor appellant has contended that the mortgage money belonged to Sariatulla, and that even if it belonged to Sabaktulla, his heirs are bound by the release granted by the representatives of the ostensible mortgagee. These positions have been controverted by the plaintiffs respondents, while Gulzar, as another respondent has sought to maintain his own position, contrary to the assertions of both the mortgagor and the plaintiffs. The mortgagor-appellant has also urged that the suit is bad for misjoinder of parties and causes of action.

(3.) We shall first consider the objection to the frame of the suit, which was taken in the Court below, and, in our opinion, rightly overruled by the Subordinate Judge. The relief sought by the plaintiffs may be analysed and classified as follows: (a) declaration against the mortgagor that the plaintiffs were entitled to the mortgage dues, and consequential relief on the basis of such declaration; (b) declaration against the heirs of Sariatulla that the plaintiffs, and not they as asserted by them, were entitled to the mortgage dues; (c) declaration against Gulzar that the plaintiffs, and not he as asserted by him, were entitled to the mortgage dues.