BISSONATH PROSAD MALITA Vs. BRINDESRI PROSAD SINGH

JUDGEMENT

(1.) The plaintiffs have brought this suit to realise a mortgage security executed in their favour by Babu Jagdip Narain Singh, defendant No. 1. They have made defendants to the suit both Jagdip Narain Singh and his only son Brindesri Prosad Singh, it being their case that the son, who was a minor at the date of the mortgage, is as much bound by it so far as it creates a security on the property comprised in it, as the father by whom it was executed. The suit was dismissed as against the son and hence this appeal.

(2.) The mortgage, Exhibit I, is dated the 21st November 1893, and to appreciate its meaning, it should be borne in mind that the mortgagees were a firm of bankers or mahajans. It begins in these terms: "Whereas I, the declarant, have taken lease of certain mouzahs and have to pay the rent thereof to the proprietors instalment by instalment; but the rent is not realised in due time from the tenants of the lease-hold mouzah and the proprietors are always making pressing demands; therefore, I have of my own accord and free-will opened, for the payment of the rent to proprietors due on account of the lease-hold mouzahs, a khata for Rs. 5,000 bearing interest at the rate of Re. 1 per cent. per mensem with the firm of Babu Bir Kishwar Lal-Parmeshur Narain at Koochi Hiranand Sahu, appertaining to Thana Chouk Kalan, one of the quarters of Patna City as per details given below"--Then there follow provisions regulating the details of the transaction. The first clause provides for two chittas, one to be kept in the bankers place of business, and the other to remain with the mortgagor, and then says: "all sums paid into and received from the kothi by me shall be entered in both the chittas." The succeeding clauses deal with interest, periodical adjustments, the closing of the transaction, and then the charge is created in these terms. (His Lordship read Clause 7).

(3.) The schedule to the mortgage describes the property, and from this description, it is apparent that the instrument professes to charge the entire family interest in this property. This has not been disputed be- fore us.