GAJANAND AGARWALLA Vs. RANI PRAYAG KUMARI DEBI

JUDGEMENT

(1.) This suit was instituted by Joyram Sivjee and Gajanand Agarwalla against Rani Prayag Kumari Dabi, Rani Hem Kumari Debi, and Ashutosh Mukherjee. The plaint was admitted on 8th March 1934. In it the plaintiff stated inter alia that Raja Durga Prosad Singh of Jheria died in 1916 leaving three widows, namely the two female defendants and Rani Subhadra Kumari Debi, since deceased. That Joyram and the defendant Ashutosh had lent Rs. 1,25,000 at interest of 15 per cent. per annum to the three Ranis, namely, Rs. 75,000 on 27 April 1921, and the balance on different dates between that date and the mon July, 1921. Out of the sum of Rs. 1,25,000 so lent, Joyram had advanced one lac, and Ashutosh Rs. 25,000. That payment was secured by a mortgage dated 27 April 1921 of certain properties which the Ranis claimed as widows and heiresses of their late husband but of which they had been dispossessed by artifice, and that by that mortgage it was stipulated that the loan should be repayable within one year from the final adjudication of the title of the Ranis to the property mortgaged, in Title Suit No. 48 of 1919 of the Court of the Subordinate Judge of 24- Pergannahs. That such title was finally adjudicated upon by the Judicial Committee on 7th April 1932 and by the High Court of Calcutta in its civil appellate jurisdiction by a decree made on 31 August 1933, the result of such decrees being that the Ranis were found not to be entitled to any of the mortgaged properties. That by a deed of assignment, Joyram had transferred a fourth part of the amount due to him including interest to Gajanand. That Ashutosh had refused to join Joyram and Gajanand in bringing this suit.

(2.) By their written statement filed on 16 July 1934 the two Rani defendants stated inter alia that they admitted execution of the mortgage, and that they had received a sum of Rs. 50,000 on 27 April 1921, of which Rs. 30,000 had been repaid to Joyram. But they denied receiving any further sum or sums, and that any part of the said sum had been advanced by Ashutosh, and they relied on the rule of damdupat. Further they said that the time for repayment according to the terms of the mortgage deed was one year from the date of the final disposal of Suit No. 48 of 1919, and that that suit was not finally disposed of until 14th May 1934, and that the present suit therefore was premature. Further they stated that by the aforesaid decrees they had been declared entitled to some of the properties covered by the mortgage. By his written statement filed on 11 June 1934, Ashutosh admitted the allegations contained in the plaint and claimed a decree for such sum as might be found due to him.

(3.) For some reason which has not been disclosed, Joyram did not proceed with the suit, and having failed to obey an order to file his affidavit of documents, he was transferred to the category of the defendants on or about 15 May 1935. On 1 May 1935, Ratna Sivjee was ordered to be added as a party defendant on the ground that he claimed as a member of a joint Mitakshara Hindu family to be entitled to a share in the money lent by Joyram. He filed his written statement on 5 June 1935. Consequent upon these two orders, the plaint was amended and re-verified by Gajanand in August 1935, and Ratna filed an additional written statement on 23 September 1935. The suit same on for hearing on 30 July 1936, and the following issues were raised on behalf of the defendant Ranis and settled : (1) When was the Title Suit No. 48 of 1919 in the Court of the First Subordinate Judge at Alipore finally disposed of? Is the suit premature? (2) What was the amount advanced to the Ranis of Jharia on 27th April 1921? What sum, if any, was advanced to them on subsequent dates? Was any sum advanced by Joyram out of the joint family assets? (3) Can the suit proceed in the absence of the other members of the joint family of Joyram Sivjee and Ratna Sivjee if the advances by Joyram were made out of the joint family assets? (4) Was the alleged assignment of 17th October 1933 executed by the members of the joint family of Joyram Sivjee and Ratna Sivjee? Was any consideration paid therefor? Is it valid in the circumstances? (5) Is the suit maintainable if the assignment is invalid? (6) What sum, if any, has been repaid by the said Ranis? (7) What sum is now due and payable by the Rani defendants having regard to the rule of damdupat?