LAL BEHARY SAHA Vs. BIMALAPADA MAJUMDAR

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit on a mortgage bond. Two persons Radharaman Majumdar and Mohini Mohan Majumdar executed the mortgage bond. Afterwards the two mortgagors deposited a certain sum of money in Court under Section 83, T.P. Act, stating that was the sum which was due from them to the plaintiff who appeared and stated, after notice was issued upon him, that the amount was not sufficient and he refused to accept the tender and thereafter the plaintiff instituted the present suit on his mortgage bond. When the suit was pending defendant 2, Mohini Mohan, died and the plaintiff did not bring in his heirs, in good time, upon the record and the suit as against him abated. After the suit had abated against Mohini Mohan the plaintiff brought on the record Bimalapada Majumdar, a son of the said Mohini Mohan on the ground that he was in possession of part of the mortgage property.

(2.) The Court refused to consider him as a representative of the deceased defendant 2 for the purpose of this suit as he was not brought on the record within the time allowed by law. The suit was decreed against defendant 1 only, on the ground that both the mortgagors were jointly and severally liable for the whole of the mortgage debt, but it was stated that if the amount was paid, only the share of defendant 1 should be sold. It may be stated that though on the deposit by the two mortgagors under Section 83 the plaintiff had refused the tender, the money was allowed by the mortgagors to remain in Court. Neither defendant 1 nor any representative of defendant 2 withdrew any portion of the money. When the Court decreed the suit the Court recorded an order that the decretal sum is to be recovered from the sum deposited by Chalan Ex. 6 in the Court; the remainder of the sum decreed is to be recovered from defendant 1 or from the share of the property of defendant 1 in the plaint. As against Bimala, son of the deceased defendant Mohini Mohan, the suit was dismissed. Against that decree Bimala made an appeal on the ground that he was heir to his deceased father, defendant Mohini Mohan, and he had a right to get back the share of the money which his father had deposited under Section 83, T.P. Act. The Court of appeal below found that there was nothing to show what share of the deposit had been made by the appellant's father, but on a general consideration thought that it would be safe to assume that the two mortgagors had deposited the money in the share of half and half and thereupon made an order that half of the deposit money should be returned to the appellant Bimala. Against that decree the present appeal has been made by the plaintiffs.

(3.) In the first place it is urged that as no decree was passed by the first Court against Bimala ha had no right of appeal against the same. There is some force in this contention inasmuch as the Court of trial did not reject the prayer which was made before it by Bimala. The Court indeed passed an order that the deposited amount should go to satisfy the decree but as to this in the Court of trial he had made no prayer whatsoever. It was for the first time in the Court of appeal that he made a claim to the share of the money deposited by the deceased father. However on the ground that he was adversely affected an appeal was accepted by the Court of appeal below. On the merits it is urged that Bimala not having made any prayer for withdrawal of any portion of the money in the first Court he was in the position of a plaintiff in the Court of appeal where he for the first time made his claim and he being a claimant the onus of proof was on him to show what share if any of the deposit money belonged to his deceased father and further whether he was the sole representative of his father. On neither of these points he adduced any evidence and the Court proceeded on a general ground as if the two men had deposited money in joint names at a Bank, and on their death the Court would divide the money in equal shares to their heirs. This is not a case of that sort.