AKHIL BANDHU GUHA Vs. SRIMATI SURADHANI DEBYA CHAUDHURANI

JUDGEMENT

(1.) These two appeals arise out of a judgment and decree in a suit upon a mortgage which was brought under the following circumstances: Defendant 1 is the proprietor of an estate, defendant 2 who died pending the hearing of the suit, defendant 1 being substituted in her place, was the widow of defendant 1's grandfather. Defendant 1 on attaining majority executed a deed of trust in favour of defendant 2 for the management of the estate. From 1914 onwards, defendants 1 and 2 together executed eight mortgage bonds as follows: Between 1914 and 1917 they executed four mortgage bonds in favour of the Maharaja of Mymensingh. On 18 March 1918 they executed the fifth mortgage bond, viz., in favour of the predecessors of defendants 3 to 6 (vide Ex. S) in respect of properties which are mentioned in para. 4 of the plaint. By this bond defendants 3 to 6 were subrogated to the first mortgage in favour of the Maharaja. On 18 August 1918 the sixth mortgage bond which was in favour of the plaintiff (vide, Ex. 1) was executed and by this document the plaintiff was subrogated to mortgages Nos. 2 to 4 in favour of the Maharaja. On 16 April 1920 the seventh mortgage which was in favour of defendants 3 to (6, vide Ex. R) was executed. The eighth mortgage and the third one in favour of the same defendants (vide Ex, T) was executed on 17 February 1923. This mortgage comprised all the properties comprised in the previous mortgages and also a new property which was described as Bailor House. So it happened that in respect of the plaintiff's mortgage, defendants 3 to 6 came to be in the position of prior mortgagees with regard to certain properties and subsequent mortgagees with regard to remaining properties, as also with regard to an additional property. Plaintiff in her plaint while impleading all the defendants mentioned all the mortgages executed in favour of defendants 3 to 6. According to the statements made in paras. 3 and 4 of the plaint these defendants were impleaded in order to give them an opportunity to consent to the order in which the mortgage properties were to be sold, plaintiff's prayer being that the properties which formed the subject matter of the prior mortgage to defendants 3 to 6 were to be sold last of all: vide para. 4 of the plaint. On 4 June 1931, defendants 3 to 6 filed a written statement in which they mentioned the mortgages in their favour and pleaded that the plaintiff was not entitled to pray for a decree for the auction sale of the properties except by redemption of the mortgages executed in favour of defendants 3 to 6 or their predecessor. On 25 June 1931 defendant 1 filed a petition for time to file a written statement. This was rejected and in the course of the order the learned Subordinate Judge said: He (defendant 1) bad no right to look into the pro forma defendant's written statement before filing his own. I allow two days time. etc.

(2.) After this, defendant 1 did not file any written statement. On 29 June 1931 defendant 2 filed her written statement. In the course of this she stated that the mortgage deed set up by the plaintiff was collusive, fraudulent and obtained by undue influence, that she, defendant 2, had no power to do anything against the will of defendant 1 who got whatever he liked to be done by defendant 2. Defendant 2 further stated that the mortgage deed in suit had been created by the Officer of the Maharaja and the plaintiff in collusion with defendant 1 and she was not aware whether defendant 1 had received the consideration or not. She further pleaded that the claim was barred by limitation. In para. 12 of the written statement she pleaded that the plaintiff could not put to sale any of the properties without redeeming prior mortgages. On 6 July 1931 an additional written statement was filed by defendants 3 to 6 in which they gave details of the prior and subsequent mortgages executed in their favour by defendants 1 and 2 and they also made a detailed claim of the reliefs to which they were entitled. Defendant 2 died on 8 September 1932 and defendant 1 was substituted in her place on 13 September. On 1 November 1932 defendant 1 prayed for permission to file written statement. The order was as follows: He is permitted to file written statement only on points raised by defendant 2 and such written statement must be filed within a week from this date. No fresh ground of defence can be taken at this stage by defendant 1.

(3.) On 14 November 1932 defendant 1 filed a written statement professing to be a party substituted in place of defendant 2. In the course of that written statement he averred that the properties were subject to various other interests, that defendants 3 to 6 were not entitled to get any decree against defendant 1 in the present suit, that the agreement as to payment of compound interests as embodied in the deeds filed by defendants 3 to 6 was opposed to law, that the claim of defendants 3 to 6 was barred by limitation, that the amounts mentioned by the plaintiff and defendants 3 to 6 were not due to them and that in general all the objections made by defendant 2 would apply to the claim of defendants 3 to 6. In para. 13 of this written statement defendant 1 further stated that the written statement of defendants 3 to 6 had been filed in the form of a plaint and the same would be considered as a plaint according to law. In Para. 16 it is stated as follows: Be it stated that if defendants 3 to 6 bring a separate suit, I shall be entitled to raise all the objections that can be made against their claim and I file this written statement reserving my rights to put in objections. The same shall not be affected in any way by any statement made in this written statement.