RAMASAMY PILLAI Vs. MARIMUTHU GOUNDAN

JUDGEMENT

(1.) This appeal arises out a suit tiled on a mortgage bond (Ex. A), dated 6 April 1907, executed by Muthuswami Goundan, grandfather of the two defendants. The mortgagor died on 1 September 1915 His son, Kandaswami Goundan, the father of the two defendants, died in 1917 or 1918. The suit was filed on 6 February 1920. The plaint alleged that the mortgage debt was taken for the purposes of the defendants family, for paying antecedent debts and meeting necessary expenses of the family, and that the defendants are the undivided grandsons of the mortgagor. The defendants denied these allegations. They alleged that the mortgagor had no right to the suit properties, that they never formed part of the joint family properties of the mortgagor or his son and they also denied that the mortgagor was manager of the family at the time of the mortgage. They pleaded that the property belonged solely and exclusively to Marimuthu Goundan, father of the mortgagor and grandfather of the defendants, that the mortgagor never lived jointly with his father and the properties were bequeathed in favour of the defendants by Marimuthu Goundan by a registered will dated 1st August 1907, The plaintiff anticipated these allegations in para. 5 of the plaint and alleged that the will was a collusive document brought about for the purpose of defrauding him. Both sides filed draft issues. One of the issues in each of the drafts was: Are the suit properties the self acquisition of defendants great-grandfather and had the mortgagor no right or title to mortgage the plaint properties?

(2.) The issues, as finally settled by the Court, also raised such an issue (issue 2). This was on 16 March 1920. In April 1921 defendant 1 attained majority and filed another written statement repeating the old pleas. On 18 July 1922 the Subordinate Judge passed an order striking off issues 2, 5 and 6 on the ground that they raise the question of a paramount title and that such a title cannot be gone into in a mortgage suit. The remaining issues were tried and a decree was given in favour of the plaintiff allowing an interest of 20 per cent. from the date of default, i. e., 5 February 1908, on the aggregate sum then due.

(3.) The main appeal was filed by the plaintiff. He claims 18 per cent. compound interest. The document itself provided 24 per cent. compound interest form the date of. default, but the plaintiff appellant is content with 18 per cent. compound interest. The respondents-defendants have filed a memo of objections. In this they contend that the Court below erred in striking out issues 2, 5 and 6 and now wish the issues to be tried. It will be convenient to take this point first. The rule, that in a mortgage suit the title of a third party paramount to that of the mortgagor and mortgagee cannot be enquired into, is now well established: see Jaggeswar Butt V/s. Bhulan Mohan Mitra [1906] 33 Cal. 425. In that case, the plaintiff had so framed the plaint as to implead persons who claimed a paramount title. All the contesting defendants in that case raised the objection that the suit was bad for misjoinder of parties and of causes of action. The Subordinate Judge disallowed the objection. There was an appeal by the defendants who repeated the objection that the suit as framed was multifarious. Mukerjee, J., exhaustively reviewed all the authorities on this matter. He referred to the decision in Nilakant Bannerji V/s. Suresh Chandra Mullick [1886] 12 Cal. 414, a decision of the Judicial Committee. He pointed out that their Lordships observed that if the defendants who alleged a paramount title in this had been allowed to remain as parties, the suit would have been multifarious and confused in the highest decree if it had gone on in that shape.