SARADINDU MUKHERJEE Vs. JAHAR LALL AGARWALLA

JUDGEMENT

(1.) This is an appeal on behalf of defendant 3, and arises out of a suit which was commenced by the plaintiff to enforce two English mortgages which had been executed in his favour on 20 May and 29 September 1919. There were five defendants in the suit, and a preliminary decree for foreclosure was made against them all by the First Additional Subordinate Judge of 24-Parganas on 29 July 1935. The present appeal is directed against this decree. Since this appeal was presented, the final decree was passed on 23 November 1938, whereby the defendants and all persons claiming through them were absolutely debarred of their right to redeem the mortgaged properties. No appeal has been preferred against this final decree, but a copy has been placed on the records of this appeal, and following the procedure Laid down by the Full Bench in Talebali V/s. Abdul Aziz , it should be the duty of this Court in dealing with the present appeal to give necessary and consequential directions regarding the final decree.

(2.) The facts giving rise to this litigation are as follows : On 30 September 1906, one Mohendra Nath Das, a wealthy Hindu governed by the Dayabhaga school, died leaving a will, executed a few years before his death, whereby he had endowed all his properties, moveable and immovable, for the worship of a family deity called Sri Sri Iswar Mahadeb or Shib Thakur. The will was in due course admitted to probate by the executors. Shortly thereafter, on 27th March 1909, a nephew (brother's son) of the testator, named Charu Chandra Das, commenced a suit (suit No. 313 of 1909) against the executors on the original side of this Court, in which he claimed that the properties left by Mohendra were joint properties and that he had inherited an eight anna share in the same. He accordingly asked for a declaration of his title and for partition. On 12 June 1912, a preliminary decree was passed in the suit, declaring Charu's title to a half share as claimed, and directing a partition by metes and bounds. No steps, however, were taken by Charu to enforce a partition under the decree. It was while the properties still remained joint that the executors of Mohendra's estate effected the present mortgages in favour of the plaintiff, the first on 20 May 1919 and the second, a deed of further charge, on 29 September following. The security offered was the testator's declared undivided share in the properties left by him, which comprised some lands at Belur and Ultadinghi and two brick-built houses in Calcutta, namely 5, Padma Nath Lane and 88, Beadon Street. The principal amounts secured by the two mortgages were Rs. 3500 and Rs. 2500 respectively, carrying interest at the rate of 12 per cent. per annum compound with quarterly rests, and the due date fixed for the repayment of the loans was 20 May 1920. Meanwhile, Charu had got heavily involved in debts, both secured and unsecured and on 1st September 1919, on the petition of a creditor, he was adjudicated an insolvent by an order of this Court in its insolvency jurisdiction. The result was that his properties, being the undivided eight anna share decreed to him in the partition suit, vested in the Official Assignee. The Official Assignee in due course advertised the said share for sale for payment of the insolvent's debts, and this attracted defendant 3, Saradindu Mookerjee, as an intending purchaser.

(3.) It is stated on behalf of Saradindu that he had dealings from before with Charu as well as with the executors of Mohendra's estate, but whether that is a fact or not, it appears that on 4 August 1920, he did enter into an agreement with the Official Assignee, to which both Charu and the executors were made partiRs. The terms of this agreement, which really constitutes the foundation of Saradindu's claim in this suit, will have to be examined later, but it "will be sufficient to state at this stage that Saradindu thereby agreed to purchase Charu's undivided interest in the properties which the Official Assignee had offered for sale, subject to payment of all his debts which had been secured thereon, and Saradindu also undertook to pay off all the secured debts of Mohendra's estate, on condition that Charu and the executors of Mohendra should "carry out" the decree for partition, and upon such partition, allot to Saradindu "sufficient properties" out of the joint estate which would enable him by sale thereof to discharge all the secured liabilities in both shares.