DAKHNIDIN Vs. BHAWANI PRASAD

JUDGEMENT

(1.) The facts of this case are stated fully in the judgment of the Court below. A short summary of them will be sufficient to explain the question which we have to decide.

(2.) One Rahat Husain in 1883 and 1890 mortgaged some property to Bhawani Prasad (respondent) and his step-brother, Raja Ram. Rabat Husain died leaving four sons and three daughters. In 1895 two of the sons mortgaged the same property to the same two persons and in 1905 the same two sons and another son sold the property to the appellant s mother, Nidhao Koer, leaving in her hands so much of the price as was required to discharge the vendor s proportionate liability under the mortgages of 1883 and 1890 and the mortgage of 1895 made by two of them. In August 1905 Nidhao Koer through the appellant, her son and agent, paid to Bhawani Prasad Rs. 23,453-14-3 in satisfaction of the claims of Bhawani Prasad and Raja Ram under the three mortgages of 1883, 1890, and 1895. Rs. 9,000 odd being paid in cash and a village being transferred in lieu of Rs. 14,000 odd. Before the payment was made the two brothers had fallen out and Raja Ram had published a general notice in several newspapers and had sent a special notice to each debtor, including Nidhao Koer, to the effect that Bhawani Prasad had no authority to receive monies due to the family or firm.

(3.) Meanwhile Ali Ashraf, the fourth son of Rahat Husain, had mortgaged his interest to the appellant and the latter now proceeded to pay to his mother the amounts due on the interests of three sons and the three daughters under the deeds of 1883 and 1890. Two of the daughters ultimately redeemed their interests from the appellant. In 1908 the appellant brought two suits against Ali Ashraf and the third daughter to recover the amount due on the mortgage made by Ali Ashraf and the amounts which he had paid on their account to his mother. Among the defendants were Bhawani Prasad, Raja Ram and Nidhao Koer. The last named died during the suits and her interest passed to the appellant. In both suits Raja Ram pleaded that the payment made by Nidhao Koer in August 1905 was ineffective as regards his share of the mortgage money payable under the deeds of 1883 and 1890. The Subordinate Judge accepted this plea and required the present appellant to pay Rs. 9,400 odd to Raja Ram before bringing the property to sale. The appellant appealed to this Court in one case (No. 13) but did not appeal in the other and it was held that the decision in the latter case rendered the question res judicata. The result was that the appellant had in course of time to pay the sum mentioned to Raja Ram. While the suits of 1908 were pending, Raja Ram brought a suit on the mortgage of 1895 and ultimately recovered over Rs. 8,000 from the appellant on account of his share of the mortgage money.