DEBENDRA NATH SEN Vs. MIRZA ABDUL SAMED SEROJI

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in an action for the enforcement of a mortgage executed in his favour by the first defendant on the 16 September 1899. The properties comprised in the security are three in number and may be briefly described as the Mogulbagan, the Chitpur Road House and the Tangra Road land. In order to determine the relative lights of the parties to the properties in question, it is necessary to set out in detail the various transactions which have taken place with regard to them both before and after the mortgage; These transactions are of a somewhat complicated character; but, so far as it is necessary to describe them for the purpose of disposing the questions raised before us, they may be thus briefly outlined.

(2.) The father of the first defendant, Abdul Karim, died on the 9 January 1897, and left an estate of considerable value, part of which was heavily encumbered. In his lifetime, on the 22 February, 1894, he had executed a mortgage for one Lac of rupees upon the Chitpur Road House in favour of the London and Lancashire Life Insurance Company. He left three sons, Abdus Samad (the first defendant), Mohamed Bakar, Abdul Mohamed, a widow and two daughters. Shortly after his death, on the 3 February 1897, his two sons, other than the first defendant, obtained Letters of Administration to his estate from the Original Side of this court. While the estate was in course of administration, the first defendant, on the 10 February 1899, executed a bond in favour of the plaintiff for Rs. 4,000 and hypothecated his share in Mogulbagan, the Tangra Road land, and another property in Ballygunge. It appears from the evidence that the Ballygunge property had been sold out and had ceased to form part of the estate before the execution of the mortgage. When the plaintiff discovered this, and found the mortgagor unable to pay the interest regularly, as he had covenanted to do in the mortgage bond, he began to press him for additional security. Meanwhile on the 20 June 1899, the first defendant executed another bond for Rs. 5,000 in favour of the fourth defendant, and hypothecated his share in Mogulbagan, the Chitpur Road House, and the Tangra Road land. On the 24 June and the 28 July 1899, the mortgagor executed two other bonds in favour of the sixth defendant, and hypothecated the properties covered by the security of the 20 June 1899. It is also stated that, on the 23 July 1899, he executed another mortgage bond in favour of the third defendant, but no details, as to this transaction, are forthcoming. On the 16 September 1899, he executed in favour of the plaintiff the mortgage bond, which is the foundation of the present suit, for a sum of Rs. 4,861, and the properties given as security were the shares of the mortgagor in Mogulbagan, the Chitpur Road House and Tangra Road land. The consideration was made up of the 4,000 rupees, advanced upon the bond of the 10 February 1899, a sum of Rs. 361, which represented the interest which, had accrued due on that date, and a sum of Rs. 500 as a fresh advance. On the 9 January 1900, the mortgagor executed another bond for Rs. 3,325 in favour of the fifth defendant, and the properties given as security were his shares in Mogulbagan and the Chitpur Road House. In 1901, the London and Lancashire Life Insurance Company, commenced a suit on the Original Side of this Court to enforce their security, and they joined as defendants, the administrators, the present plaintiff, the husband of the fifth defendant, another puisne encumbrancer, who claimed to derive title from the first defendant, and other encumbrancers, who derived title from the administrators. This suit was consolidated with another, in which certain creditors of the estate of the father of the first defendant had sued to enforce a money claim against the administrators. So far as we can make out, the cases may have been heard together, but a separate decree was drawn up in the case of the London and Lancashire Life Insurance Company. To the terras of tills decree made on the 27 April 1903, we shall have to refer in detail hereafter, but it is sufficient to state at this stage that the decree directed the sale of the Chitpur Road House as also of the properties covered by the securities of the defendants, who derived title from the administrators. Various directions were given as to the order in which the London and Lancashire Life Insurance Company and the other mortgagees from the administrators were to be paid, but so far as the present plaintiff and the other persons who hold mortgages from the first defendant, Abdus Samad, were concerned, no provision was made for the realization of their claims, although liberty was reserved to them to apply to the court for the administration of the estate of Abdul Karim, and for the sale of what might prove to be the share of the present first defendant, Abdus Samad, in it. No materials have been placed before us to enable us to form an accurate idea of what proceedings have been taken pursuant to this decree; but we have been informed that the Chitpur Road House has been sold and that the proceeds have been practically exhausted in satisfaction of the claims of the London and. Lancashire Life Insurance Company, and the other mortgagees who derived title from the administrators. The result in substance has been that nothing has been left, against which the appellant could proceed for the satisfaction of his claim.

(3.) We have now to turn back for a moment to the proceedings, under which the second defendant, who is the real contesting defendant in the present litigation, derived his title. On the 22 February, 1899, the administrators obtained the leave of the court to sell the Mogulbagan property for the purposes of the administration of the estate of Abdul Karim. On the 24 June 1899, two persons, by name Kailash Chandra Pal and Jogendra Nath Pal entered into an agreement with the administrators to purchase the property, The inquiry into the title, however, was protracted, and it was not till the 28 January 1902 that a conveyance was executed by the administrators to the Pals for Rs. 1,04,000. Meanwhile, on the 9 July 1900, the present second defendant, Bhoglu, had obtained a decree for money against the first defendant, Abdus Samad, in the Calcutta Small Cause Court. The decree was transferred to the Court of the Munsiff of Sealdah, and on the 2 May, 1901, the share of Abdus Samad in Mogulbagan was attached in execution. On the 12 July 1901, the administrators preferred a claim on the ground that they were in possession of the attached property, which had vested in them as administrators, and that it could not be seized by any execution creditor of Abdus Samad till the administration of the estate of his father had been completed. This claim was disallowed on the 7 September 1901. The administrators then obtained a Rule from this court for the revision of this order, but on the 14 May 1902, the Rule was discharged in the presence of the claimants, the decree-holder and his judgment-debtor. The second defendant, Bhoglu, then proceeded with the execution of his decree, brought the share of Abdus Samad to sale and purchased it himself for Rs. 802, on the 14 November 1902. This sale was confirmed on the 9 December 1902. Meanwhile, a portion of Mogulbagan had been acquired for public purposes under Land Acquisition Act, and a sum of over Rs. 52,000 was in the custody of the Collector. Disputes now arose between Bhoglu and the Pals as to the disposal of this sum of money. On the 13 August 1904, the Pals took proceedings before the Land Acquisition Judge for apportionment of the sum which represented the value of the portion acquired, and on the 19 July 1905, the Pals commenced an action against Bhoglu for declaration of their exclusive right, as against him, to the property purchased by them. The Court of First Instance, in each of these two cases, held that, as neither the administrators nor the Pals who derived title from them, had instituted a suit to challenge the propriety of the order in the claim case, within the period of limitation prescribed therefor, the order had become final and conclusive with the result that as against the Pal, Bhaglu had become entitled to what had been seized by him in execution as the interest of his judgment-debtor, Abdus Samad, in Mogulbagan. Appeals were then preferred to this Court by the Pals and the view taken by the Court of First Instance was affirmed on the 16 April 1907. Meanwhile, on the 22 July, 1906, the plaintiff commenced the action, out of which the present appeal arises, for recovery of the sum due under his mortgage security. The first defendant was the mortgagor, Abdus Samad.; the second was Bhoglu, who had purchased the interest of Abdus Samad in Mogulbagan, on the 14th. November 1902; the third, fourth, fifth and sixth were puisne encumbrancers, and the seventh and eighth were the Pals. The mortgagor admitted the validity of the mortgage deeds, and the only objection which, he raised was that in the plaint credit had been given for a payment of Rs. 2,000, on the 16 March 1903, whereas he alleged that credit for this sum ought to have been given on the 28 January 1902. The second defendant took various objections, the most important of which was that the suit could not proceed in view of the decree made on the Original Side of this court in the suit of the London and Lancashire Life Insurance Company. He further contended that the plaintiff had relinquished his lien upon the Mogulbagan property, that in addition to the payment for which credit had been given in the plaint, another sum of Rs. 2,000 had been paid, and that, in any view of the matter, the properties comprised in the security ought to be made to contribute only rateably for the satisfaction of the dues of the plaintiff. The third defendant did not appear. The fourth defendant, who held a mortgage of the 20 June 1899, claimed priority in part, if not in whole, over the mortgage of the plaintiff. The fifth, defendant contended that the suit could not proceed in view of the decision of this court in the suit of the London and Lancashire Life Insurance Company. The sixth defendant claimed priority in respect of the sums due to her over a portion of the amount sought to be realized by the plaintiff. The seventh and eighth defendants, the Pals, contended that the mortgage was invalid as against them, inasmuch as it had been created during the pendency of the administration, and could not be enforced against the property sold to them by the administrators with the leave of the court. As the Pal defendants thus claimed under a title paramount to that of the mortgagor, they were, in view of the principle laid down by this court in Jajneswar Dutt V/s. Bhuban Mohan Mitra 3 C, L, J, 205, discharged from the suit. The Subordinate Judge then framed the following issues: (1). Is the suit barred by Secs.12 and 13 of the Civil P. C.? (2). Is the mortgage sued upon executed for valuable consideration? (3). Did the plaintiff release or abandon his mortgage lien in property No. 1 (Mogulbagan)? (4). Is the plea of payment of Rs. 2,000 of defendant No. 2 true or not? (5). Was the plaintiff aware of the Land Acquisition proceedings and has he any lien over the compensation money in deposit in the Court of the Land Acquisition Judge? (6). Is the plaintiff bound to follow properties other than property No. 1 in the first instance, and are all the mortgaged properties liable to contribute rateably? (7). Has the mortgage of defendant No. 4 priority over the plaintiff's mortgage?