GULZAR MONDAL Vs. TRAILAKYANATH SHAH

JUDGEMENT

(1.) This appeal arises out of a mortgage suit dismissed by the Subordinate Judge of Maldah. The plaintiff Gulzar Mondal (who died subsequently) and his cousins Sabektulla (the predecessors-in-interest of defendants 4, 5 and 6) and Sariatulla (the predecessor of defendants 7, 8, 9 and 10) lived in joint mess and had joint properties including a money- lending business which was carried on at several places. According to the plaint Sariat was the sole karta or manager till his death which happened in Baisakh 1315 B.E. After his death his son, defendant 4, was selected as the karta "as he was smart and intelligent." It appears that he was the karta at Rahanpur. The principal defendants 1 and 2 used to borrow money from the Mondal family. In 1313 B.E. they executed a mortgage-deed called a karbarnama in favour of Sariat as security for the loans up to a certain amount, After Sariat's death defendants 1 and 2 executed on 5 Magh 1315, corresponding to 11 January 1909, a fresh karbarnama in favour of Gulzar (who was in charge of the money-lending business at Biswanithpur, the family seat) and defendant 4. They were to borrow to the limit of Rs, 5,000 and pay interest at 1? per cent, per mensem with annual rests. The actual transactions were to be entered in a dastabij and the stipulation was that no transaction not entered therein would be taken into consideration. It appears that immediately before Sariat's death, when he was ill, the business at Rahanpur was placed in charge of a relative, Sahimaddi Munshi.

(2.) Defendant 4 thought he was making misappropriation and dismissed him. Dissensions started among the family and there were civil and criminal cases in which different members seem to have taken different sides. It is not clear when the business at Rahanpur came to an end. On the last day of limitation Gulzar commenced this action, for, his share of the mortgage-debt, viz., one-third. It was stated that the karbarnama and other papers were in the custody of defendant 4. Gulzar claimed his share of the mortgage-debt from: defendants 1 and 2 and there was an alternative prayer that if they had paid up and there was a valid discharge, a decree might be passed against defendant 4. Defendants 3 and 3-A were joined as being purchasers of a portion of the mortgaged properties. The heirs of Sabektulla and Sariatulla were also-joined and an option was given to them to join Gulzar as co-plaintiffs. The daughters of Sabektulla and Sariatulla, viz., defendants 6, 7 and 8, on their prayer, were transferred to the category of the plaintiffs and apparently accepted the statements in the plaint. Defendants 1 and 2, i.e., the principal defendants and defendant 4, the manager at Rahanpur, resisted the suit and their defence in short was that there had been an adjustment of accounts and the debt was paid up by defendants 1 and 2, who got back the karbarnama from defendant 4 and also a receipt from him. The dastabij which was to be a record of the transactions between the Mondals and the principal defendants is not forthcoming. The case for the plaintiff's was that it was with defendant 4; the defence was that it was sent to the Biswanipur along with other papers and received by Gulzar. In the absence of the dastabij the plaintiffs relied on the money advanced in 1906 in the time of Sariat and a hisab said to have been made up on 10 Magh, 1315 B.E. and a subsequent letter of acknowledgment. The question as to how much was actually advanced lost its importance on the plea set up. The learned Subordinate Judge held that defendants 1 and 2 had got a valid discharge from defendant 4 and that the latter could not be made liable without bringing a suit for accounts and in this view of the case he dismissed the suit. The plaintiffs have appealed.

(3.) The learned vakil appearing for the plaintiffs-appellants grounds his claim on the argument that one joint mortgagee cannot give a full discharge when there are joint mortgagees. The case of Abdul Hakim V/s. Adyata Chandra Das (1919) 22 C.W.N. 1021 was quoted for the principle, that payment to one of several joint creditors does not necessarily operate as a discharge of the debts in so far as the other creditors are concerned. The principle was affirmed in the case of Satindra Nath Choudhury v Jatindra Nath Choudhury . The principle is not applicable to the facts of the present case. The payment here was to a joint mortgagee, but he was also a person who was the manager and agent of all the Monals. The question really is whether he could take the money on behalf of all the co-sharers. Defendants 1 and 2 had a running account. They were to take loans which were to be entered in a dastabij kept by defendant 4 and he was to receive the payments. Defendant 4 is described as the manager and agent of the Mondals at Rahanpur in the plaint and the statement is repeated in the plaint more than once. It was urged that defendant 4 worked under Gulzar's control and for this argument reliance is placed on the written statement of defendant 4, that when the debt was paid up a remission was made with the consent of Gulzar. Defendant 4 made this statement to show that Gulzar was aware of the payment of the debt. It is quite conceivable that Gulzar was consulted. It would be natural for defendant 4 to do this, but the argument that defendant 4 acted under Gulzar and had no authority beyond a certain point is against the plaint.