SM SONAHANNESSA Vs. ABDUL HAMID

JUDGEMENT

(1.) This appeal is by the plaintiffs who have obtained a partial decree in a suit for possession. The fact according to the findings of. the Courts below, is that one Amiruddin left three sons Amiruddin, Rahimuddin and Jamiruddin, a widow Anna Bibi, defendant 7 and five daughters. The plaintiffs case is that Azimuddin had only-two sons Amiruddin and Rahimuddin who were owners of the properties which were mortgaged in 1304 B.S. to Sahabaddin whose heirs the plaintiffs are. Defendants 1 to 3 are sons of Amiruddin; defendant 6 is the son of Rahimuddin and defendant 7, the mother of Amiruddin and Rahimuddin, was made a party to the suit as an heir of the mortgagors as found by the Court of appeal below.

(2.) It appears that before the mortgage in 1304 B.S. to Sahabuddin, Amiruddin and Rahimuddin had mortgaged the property in suit in 1302 B.S. to one Earn Kumar. Ram Kumar brought a suit against the mortgagors only upon his mortgage after the mortgage to Sahabuddin, obtained a decree against the mortgagors and having purchased the mortgaged properties in execution of his mortgage decree, sold portions of them in 1904 to defendants 9 to 13. The plaintiffs predecessor brought a suit against the mortgagors only on his mortgage in 1911 and purchased the property in execution of his mortgage decree in 1915. The plaintiffs according to their case obtained delivery of symbolical possession in November 1916 but failed to get actual possession and hence brought this suit for declaration of title and for possession. There were some other defendants in the suit, defendants 15 and 16 and defendants 17 to 19, but the suit against them was dropped; and they are no longer before us. Both the Courts below have allowed the plaintiffs a partial decree, the learned District Judge having slightly modified the decree of the Subordinate Judge. The findings of the Courts below are that the property belonged not to Amiruddin and Rahimuddin but to their father Azimuddin and was inherited by his three sons Amiruddin, Rahimuddin and Jamiruddin, his widow and five daughters. The plaintiffs-mortgagors share was accordingly nine annas and odd for which they were awarded a decree.

(3.) Mr. Bose on behalf of the appellants raised four points. The first point relates to the application of the principle of res judicata and estoppel to the facts of the present case. The learned District Judge had found that Anna Bibi was made a party in Sahabuddin's mortgage suit as one of the heirs of the mortgagors and he therefore held that she was not bound to set up a title as an heiress of Azimuddin, and that her share was outside the property purchased by the plaintiffs in execution of their mortgage decree. Mr. Bose argues on the authority of the view expressed in Srimanta Seal V/s. Bindubashini Dasi that Anna should have asserted her right as an heiress of Azimuddin to the two annas share of the property inherited by her in the mortgage suit, and; not having done so, she and consequently her vendees are not entitled to plead that her share was unaffected by the sale in execution of the plaintiff's mortgage decree. The view expressed in Srimanta's case is couched in very wide language and I am not convinced of its correctness. There the defendant in a mortgage suit held twofold character, as a purchaser of the equity of redemption in the mortgaged holding as also a settlement holder from the superior landlord. In the mortgage suit ha had not sat up his right as a settlement holder. In the subsequent suit for possession it was held that, as he allowed the mortgaged holding to be sold in execution of the mortgage decree without resisting the sale he would be bound by the result of the sale in execution of the decree. I find that my doubts regarding the correctness of this decision have been confirmed by the view taken by my learned brother Pearson, J., in Asmatulla Pramanik V/s. Gamir Pramanik . That case and the case of Girija Kanta V/s. Mohim Chandra [1916] 35 I.C. 294 are clear authorities for the proposition which is as old as the law of mortgage in British India, that if a defendant in a mortgage suit has a title independent of the mortgage and paramount or adverse to it, he is not bound to sot it up in the mortgage suit. I may go farther and say that he should not even be permitted to set it up and the Court trying the mortgage suit is not justified in raising an issue of title as between him and the mortgagee.