Mussamut Dhapi and others vs Barham Deo Pershad and Ram Semaran Pershad

This suit relates to the rights of prior and subsequent mortgagees inter se. The Plaintiffs are the representatives of one Hirdey Narain in whose favour Defendants 1 to 4 and Kuldip Narain, ancestor of the Defendants 8 to 10, executed a mortgage-bond, dated 4th August 1882. The Defendant No. 16, Mussamut Dhapi, is the mortgagee under a bond executed by the Defendants 1 to 4 and Kuldip Narain in her favour on the 3rd June 1883. The money borrowed on this bond was partly employed in paying off a prior bond, executed by the same persons in favour of Hirdey Narain on the 11th November 1878. Defendants 17 and 18 are the assignees of the mortgagee under a 4th bond, dated 22nd September 1882, executed by Kuldip Narain in favour of one Hunsraj Singh.

The 1st bond, that of 1878, was sued on and a decree obtained on the 31st October 1881. A decree on the 2nd bond, i.e., the Plaintiffs'' bond was passed on the 31st July 1883, Mussamut Dhapi''s bond was sued on and a decree obtained on the 19th February 1891. The decree obtained on the 4th bond has not been produced, but the certificate obtained by the Defendants 25 and 33 and one Romesh Singh at the sale held in execution of the decree, is on the record and is dated 13th February 1894.

The Plaintiffs purchased the mortgaged properties at the sale held in execution of their decree. The sale to them was confirmed on the 2nd June 1884. Mussamut Dhapi also purchased the property in execution of her decree on the 29th February 1892.

Now, the suit is brought by the Plaintiffs for possession, or in the alternative for possession after the Defendants have had an opportunity of redeeming the property.

The Subordinate Judge has given the the Plaintiffs a decree for the alternative relief asked for by them.

This appeal is preferred at the instance of Defendants 16, 17, 18, 19, 20, 22, 23, 24, 25, 26-35.

The grounds of appeal urged on behalf of the Appellants are :

(1) That the Plaintiffs having failed to make Mussamut Dhapi, and the assignees of the 4th bond parties to the suit, they brought upon their mortgage, dated the 4th August 1882, they cannot now sue the Defendants-Appellants for possession.

(2) As the date for payment of the Plaintiffs'' bond is February 1883, which is more than 12 years before the institution of the suit, the Plaintiffs'' claim is barred by limitation.

(3) That the evidence of the Plaintiffs having obtained symbolical possession of the property in execution of their decree is insufficient, and in any case it was obtained against the mortgagor and is not effective as against the Appellants.

(4) The Plaintiffs were made parties to the suit brought upon the bonds of 22nd September 1882 and 3rd June 1883. They had then an opportunity given them of redeeming. As they did not take advantage of the opportunities thus afforded them, their rights are gone.

(5) That Mussamut Dhapi is at least entitled to priority to the extent of Rs. 2,000, as the money borrowed from her was to this extent devoted to the paying off of the bond of 1878.

(6) That as the Plaintiffs'' bond covered other properties beside the properties purchased by the Defendants, the Plaintiffs should first proceed against the other property, before having recourse to the properties in the Defendants'' possession.

(7) That the Defendants, if they are bound to redeem the Plaintiffs, should not be called on to pay more than the sum for which they (the Plaintiffs) purchased the property, or at the most the amount for which the Plaintiffs obtained a decree in their mortgage suit.

(8) That Romesh Singh, one of the purchasers of part of the property at the sale of the 13th February 1894, should have been made a party to the suit.

(9) That there is misjoinder of causes of action and that the mortgagees of the bonds of 22nd September 1882 and of the 3rd June 1883, should have been sued separately.

With regard to the first of these pleas we think that none of the Defendants are entitled to priority over the Plaintiffs. The Plaintiffs'' mortgage is dated 4th August 1882. Those of the Defendants respectively bear date the 22nd September 1882 and 8th June 1883. The Plaintiffs should, no doubt, have made the Defendants parties to the suit they (the Plaintiffs) brought upon their mortgage and as they did not do so, the decree obtained by them on the 31st July 1883, and their purchase of the property, dated the 8th August 1884, cannot affect the Defendants. But the fact of their omitting to make them parties to their suit does not extinguish their right. By their purchase of the rights of the mortgagor they acquired the ownership of the property, subject to the incumbrance existing in favour of the Defendants and as by this sale the right of the mortgagor vested in them, they arc entitled to possession, subject to the Defendants'' rights of redemption.

The suit is apparently in no way barred by limitation so far as the Plaintiffs'' right to possession is concerned. The Plaintiffs got symbolical possession in pursuance of their purchase on the 16th October 1884. We think there is sufficient evidence on the record to prove this. There are the usual reports of the peon and chowkidars, and though the peon, owing to his being attached to another district, has not been called, there are witnesses who depose to delivery of possession; we see no reason to disbelieve them. The symbolical possession obtained by the Plaintiffs was effective as against the mortgagor and was obtained within 12 years of the institution of the suit. As for the Defendants Dhapi and the purchasers at the sale in execution of the decree obtained on the 4th bond, they did not obtain possession till much later, viz., on the 15th August 1892 and 12th May 1894. The suit cannot therefore be barred.

We further do not consider that the Plaintiffs have lost their right to possession, because they were parties to the suite brought upon the bonds of September 1882 and June 1883. They were sued as subsequent, instead of prior, mortgagees. They were called on to redeem, which they were not bound, and do not now seek, to do.

The Appellant, Mussamut Dhapi, does not seem to us to be entitled to any priority even to the extent of Rs. 2,000, because this portion of the money borrowed from her was devoted by Hirdey Narain to the paying off of the prior bond of 1878. This bond was not handed over to her, and there is nothing to show that she had any intention of protecting herself from the Plaintiffs'' bond, of which she may not have known.

The plea of marshalling taken by the Appellants in their sixth ground of appeal was not raised in the lower Court, and it cannot be urged now. It is not a pure point of law.

There seems to be no misjoinder of parties, owing to Romesh Singh not having been made a party to this suit. The karta of the joint-family of which he is a member has been made a party, and we agree with the lower Court in disbelieving Romesh Singh''s statement that he purchased the property with his private funds. Any how, it is not for the Appellants to raise this objection. The Plaintiffs-Respondents may perhaps have difficulty in executing their decree. But this cannot injuriously affect the Appellants.

There appears to be no non-joinder of causes of action. The Plaintiffs'' cause of action is one. Their right to possession rests upon their purchase of the property and their dispossession, which they say took place immediately after they obtained symbolical possession, and before the Defendants purchased or took possession. Though the Defendants may have different titles to the portions of the property occupied by them, this does not render it necessary for the Plaintiffs to bring separate suits. See the case, Ishan Chunder Hazra v. Rameswar Mondol ILR 24 Cal. 831 (1897), and the cases therein cited.

There remains the question of the terms on which the Defendants are entitled to redeem. The lower Court has directed that the Defendants may redeem on payment of the Plaintiffs'' mortgage debt with interest at the rate stipulated for in the bond. The Appellants pray that they may be allowed to redeem by paying the sum for which the Plaintiffs purchased the property or the amount for which they obtained a decree in their suit. In support of this plea, the case of Sivathi v. Rama-Subbayyar ILR 21 Mad. 64 (1897) is cited, and it is urged that it is the Plaintiffs'' own fault that the Defendants had not an opportunity of redeeming before. The Privy Council cases of Umes Chunder Sircar v. Zahur Fatima ILR 18 Cal. 164 (1890), and Ganga Pershad Sahu v. The Land Mortgage Bank ILR 21 Cal. 366(1893), however seem to lay down the rule that in cases such as the present the Plaintiffs are entitled to the rate of interest stipulated for in their bond; and they appear to be of superior authority to the case decided by the Madras High Court cited above. It may also be said that if the Defendants had been anxious to redeem the Plaintiffs'' prior mortgage before, they could have instituted a suit for that purpose. For these reasons we dismiss this appeal with costs.