SOURENDRA MOHAN SINHA Vs. KUMAR JOGENDRA NARAIN SINHA

JUDGEMENT

(1.) These three applications in revision are directed against an order of the learned Subordinate Judge of Bhagalpur in an Administration Suit (No. 617 of 1928) relating to the Maheshpur Estate in the district of the Santal Parganas. The suit was originally instituted at Pakaur in the Santal Parganas but was under the orders of this Court transferred to Bhagalpur. It appears that in about 1872 the estate was held by Maharani Janki Kumari who died on 20 February 1893. By a will she bequeathed it to her younger son, Indra Narain, her elder son Harendra Narain having pre-deceased her. Indra Narain died in 1896 leaving a widow, Radha Peari, and four sons Jogendra Narain, Devendra Narain, Jyanendra Narain and Fanindra Narain. By his will he had made his widow, Radha Peari, executrix of his estate. She took out probate and administered the estate till her death. Thereafter, the four sons of Indra Narain became executors of the estate under the terms of the will of Indra Narain. One of the sons, Devendra, died leaving a son Kali Kinker who is the plaintiff in the administration suit, while his uncles are defendants. Rai Bahadur Suraj Narain Singh, the ancestor of the petitioners, in Civil Revision No. 339 of 1938 had advanced on 30 April 1874 to Maharani Janki Kumari a sum of Rupees 30,000 and obtained a mortgage from her.

(2.) Certain payments were made and later on the said Maharani executed a second mortgage in favour of the Rai Bahadur on 9 May 1881. The loans swelled up and on 6 January 1893 there was a third mortgage for Rs. 1,64,488-8-3 which included the amounts due under the two earlier mortgages also which had remained unpaid. There was on the same date another mortgage for one lac of rupees by the Maharani and Kumar Indra Narain in favour of the Rai Bahadur. Then again on 10 March 1894, Kumar Indra Narain who, at that time had become the sole owner of the Maheshpur Estate executed a mortgage for two lacs of rupees in favour of the Rai Bahadur. This covered various sums advanced which need not be stated in detail. Thus, the Rai Bahadur held three mortgages, two dated 6 January 1893 executed by the Maharani and Kumar Indra Narain, one for Rs. 1,64,481 and the other for Rs. 1,00,000 and a third dated 10 March 1894 for Rs. 2,00.000 executed by Kumar Indra Narain alone.

(3.) The Rai Bahadur brought a suit to enforce the three mortgages in the Court of the Subordinate Judge of Murshidabad (Suit No. 368 of 1903). The claim was for Rs. 10,24,030. The Murshidabad Court was selected obviously to avoid the application of the special rule of interest prevailing in the Santal Parganas, viz. Section 6 of Regn. 3 of 1872, though the bulk of the properties mortgaged was situated in that district. The suit was contested and decreed and there was an appeal by the defendants to the Calcutta High Court where a compromise was effected. Its terms need not be mentioned here in detail. The decree was executed, an objection to its execution was disallowed and an appeal against the order was dismissed on 20 December 1915. Two suits were however instituted in the Court of the Subordinate Judge of Pakaur, one in 1914 by Rani Radha Peari, the executrix of the estate of her deceased husband, Kumar Indra Narain, and another in 1916 by some other members of the family. The first suit was for redemption of the aforesaid three mortgages in favour of Rai Bahadur Suraj Narain Singh on payment of Rs. 5,58,000 or for an injunction against the execution of the compromise decree which the Rai Bahadur had obtained in the High Court, and the second was for a declaration that the mortgage decree was invalid and in the alternative for redemption on taking accounts.