SOURENDRA MOHAN SINHA Vs. HARI PRASAD SINHA

JUDGEMENT

(1.) These are two consolidated appeals from a decree of April 12, 1922, of the High Court at Patna, which varied a decree of June 17, 1918, of the Subordinate Judge of Bhagalpur.

(2.) The suit in which these consolidated appeals have arisen was instituted in the Court of the Subordinate Judge of Bhagalpur on February 5, 1915. The plaintiffs claimed Rs. 11,81,811, principal and interest, alleged to be then due under a mortgage bo December, 21, 1896, for Rs. 3,50,000, of which Rs. 1,36,142 were advanced in cash, the balance being money alleged to be due under a previous bo October, 3, 1883, and for moneys advanced at various times, and for interest at various rates. The bond in suit provided that the principal sum of Rs. 3,50,000 was to carry seven and a half per centum compound interest with yearly rests. The principal was repayable in the month of Phagon, 1310 Fasli, the last day of which month was March 14, A.D. 1903, The bond was executed by till the adult male members of the joint family, the members of which family lived in the Sonthal Parganas, and was also executed by them on behalf of all the minor members of the joint family as their guardians. It was intended that the bond should bind all the members of the joint family and the property mentioned in the bond. All the defendants, except as later in this paragraph is mentioned, are members of the joint family. The joint family is governed by the school of Hindu law of the Mithila. The grantee of the bond, who was the mortgagee, was Surja Narain Singh, Bahadur, of the District of Bhagalpur, by profession a pleader, who had occasionally acted for the joint family, and knew its financial position ; he died long before this suit was brought, and. the plaintiffs are his representatives and are the persona in whom are vested his rights under the bond, The defendant, Dwarka Prasad Singh, was by birth a member of the joint family. Since the bond was made he was adopted into another family. The other defendants, who are not members of the joint family, claim through the joint family. The executants of the bond, in addition to granting the rights of a mortgagee to Surja Narain Singh, declared by the bond that they should jointly and severally pay the principal and interest, simple and compound, for which the bond was given. A previous suit on the same mortgage bo December, 21, 1896, had been brought in the Court of the Subordinate Judge of Bhagalpur on June 20, 1904, by the then representatives in interest of Surja Narain Singh, the deceased mortgagee, against the then members of the joint family and others who claimed title through membors of that family. That suit of 1904 came on appeal to His Majesty in Council and was dismissed by His Majesty in Council acting upon and adopting the advice tendered to His Majesty in a judgment of the Board which was delivered on May 19, 1914, by Lord Moulton. In considering the advice which it will be the duty of their Lordships to tender to His Majesty in these consolidated appeals, it will be necessary to refer at some length to the judgment of the Boa May, 19, 1914. That judgment of the Board is reported in Maha Prasad V/s. Ramani Mohan Singh (1914) L.R. 41 I.A. 197 : S.C. 16 Bom. L.R. 824.

(3.) In each of the suits the main claim was for a decree which might be executed by a sale of the mortgaged property on de-fault of payment by the mortgagors of the amount decreed to be due under the mortgage bond. In each of the suits there was a claim for such other relief as the plaintiffs might be entitled to, which would include a decree on the personal liability under the mortgage bond of the persons who might be the mortgagors. The property mortgaged was the joint property of the joint family, the greater part of which was situate within the Sonthal Parganas. That joint property extended from the Sonthal Parganas into the district of Bhagalpur, and the smaller part of the joint property thus happened to be situate within the local limits of the ordinary jurisdiction of the Subordinate Judge of Bhagalpur. The mortgage bond was executed in Bhagalpur and was registered in the Bhagalpur Registry.