SOURENDRA MOHAN SINHA Vs. HARI PRASAD

JUDGEMENT

(1.) These are two consolidated appeals from a decree of the 12th April 1922, of the High Court at Patna, which varied a decree of the 17th June 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 the 5th February 1915. The plaintiffs claimed Rs. 11,81,811 principal and interest alleged to be then due under a mortgage bond of the 21st December 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 bond of the 3rd October 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 7 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 the 14th March A.D. 1903. The bond was executed by all 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 persons 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.

(3.) A previous suit on the same mortgage bond of the 21st December 1896, had been brought in the Court of the Subordinate Judge of Bhagalpur on the 20th June 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 members 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 the 19th May, 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 Board of the 19th May 1914. That judgment of the Board is reported in Maha Prasad Singh v. Ramani Mohan Singh A.I.R. 1914 P.C. 140.