Ram Ajodhya Tewari vs Firangi Tewari and Others

Mohammad Noor, J.—This second appeal is by defendant 2 of a suit to enforce a simple mortgage by defendant 1 for a sum of Rs. 500. The mortgage was dated 10th September 1915, the due date being 30th Aghan 1324 Ps (corresponding to 15th December 1916). It was in favour of six persons: Girwar Narain Mahton v. Mt. Makbunessa 1916 Pat 310 Rameshwar Tewari; Jag Sali v. Ram Chandra Prasad. 1921 Pat 377 Sheogobind Tewari; Abdul Rahman v. Shib Lal Sahu 1922 Pat 252 Daroga Tewari; Govind Chandra Ghose v. Jamaluddin Mondal 1938 Cal 621 Firangi Tewari; Kishan Prasad v. Har Narain Singh (1911) 33 All 272 Ravan Tewari and Hari Prasad Singh v. Sourendra Mohan Sinha 1922 Pat 450 Supan Tewari. There is no specification about the extent of the interest of each mortgagee in the deed, but it was stated in the plaint that Rameshar and Sheogobind had one-third, Daroga and Firangi another one-third and Ravan and Supan the remaining one-third. The original plaintiffs were Daroga and Firangi alone. Ravan and Supan and the representatives of Ramesher and Sheogobind who had died were made party defendants, Bidya and Kirtan, defendants 7 and 8, as representatives of Ramesher and Ramlakhan, defendant 9 that of Sheogobind. Later on, Bidya and Kirtan applied that they along with their minor brother Chandrika be made plaintiffs. Similarly, Ramlakhan applied that he along with his minor nephew Nathuni Tewari be made plaintiff; but as the application of Bidya, Kirtan and Ramlakhan was not for adding any party but only for transferring of names from the category of defendants to that of plaintiffs, Chandrika and Nathuni were not added as plaintiffs, and only the names of Bidya, Kirtan and Ramlakhan were transferred to the category of plaintiffs. Ravan Tewari and Supan Tewari also applied to be made plaintiffs and their names also were transferred from the category of defendants to that of plaintiffs. I have stated these facts in detail as they are necessary for the determination of the appeal.

Defendant 1, the mortgagor, did not contest the suit, though he appeared and took time to file a written statement which he never did. The suit was contested by defendant 2 who had taken a gift of the mortgaged properties from defendant 1. He alleged that the mortgage deed was farzi, invalid, null and void and inoperative and without consideration, and also pleaded that the suit was bad for defect of parties. The trial Court held that the deed was genuine, real and for consideration. About the defect of parties it held that the absence of Nathuni was not fatal as he was effectively represented by his uncle Ramlakhan whom it found to be the karta of the family, but it held that the absence of Chandrika was fatal and dismissed the suit. On appeal by the plaintiffs, the learned Subordinate Judge has decreed the suit. He doubted the reality of the mortgage, but held that on the evidence on record he was bound to uphold it. He also held that neither the absence of Nathuni nor of Chandrika affected the suit. Defendant 2, as I have said, has preferred this second appeal, and the only question before us is whether the suit can succeed in the absence of two minors Nathuni and Chandrika, who admittedly have an interest in the mortgage, Nathuni being the grandson of the original mortgagor, Sheogobind and Chandrika that of Ramesher. Ramlakhan, the uncle of Nathuni and son of Sheogobind, is as I have said, on the record and so are Kirtan and Bidya, the two elder brothers of Chandrika, all the three being the grandsons of the original mortgagor Ramesher. The learned Munsif seems to have erred in thinking that Nathuni is the nephew of Sheogobind. In fact he is, as I have said, the grandson of Sheogobind and nephew of Ramlakhan. Similarly, the learned Subordinate Judge has erred in thinking that Bidya, Kirtan and Chandrika are the sons of Ramesher. They are sons of Bishun and, as I have said, the grandsons of Ramesher.

Now the question is whether Nathuni was effectively represented by Ramlakhan, and Chandrika by his two elder brothers Bidya and Kirtan. The appellants have relied upon the case reported in Girwar Narain Mahton v. Mt. Makbunessa 1916 Pat 310. In this case no less than ten members of the descendants of the four mortgagees were omitted from the suit. Roe and Jwala Prasad, JJ., held the omission to be fatal and the mortgage suit was dismissed. This case was however distinguished in the two later cases: Jag Sali v. Ram Chandra Prasad. 1921 Pat 377 and Abdul Rahman v. Shib Lal Sahu 1922 Pat 252 to both of which Jwala Prasad, J., was a party. In the former case there was a finding that the sons of the plaintiffs were joint with them, and holding that the plaintiffs'' claim was on behalf of the family the Court held that the omission of the sons did not affect the suit. Reliance has also been placed upon a decision of the Calcutta High Court in Govind Chandra Ghose v. Jamaluddin Mondal 1938 Cal 621 where it was held that a mortgage is indivisible and a suit must be instituted at the instance of all the mortgagees and if it is brought at the instance of one of the several mortgagees, all the remaining must be impleaded in the category of defendants and if the necessary parties were not impleaded before the suit became barred by limitation the whole suit must fail. The respondents have relied upon the Privy Council decision in Kishan Prasad v. Har Narain Singh (1911) 33 All 272 where their Lordships of the Judicial Committee held that a suit by the managing member of a joint family to enforce a contract in favour of the family was maintainable and the addition of the other members of the family as parties was unnecessary.

Reference has also been made to a decision of this Court in Hari Prasad Singh v. Sourendra Mohan Sinha 1922 Pat 450 where the absence of a minor from the category of the defendants was not considered fatal to the suit. I do not propose to discuss these cases in detail. The law on the subject is laid down in Order 34, Rule 1, Civil P.C., and it cannot be disputed that all the mortgagees must be party to a suit to enforce the mortgage. In my opinion, there is no conflict of decisions in this respect. The only question which arose in those cases was whether or not all the mortgagees were effectively represented in the suit. Those cases were decided on the facts of their own, where it was held that the defendants, though not on record, were sufficiently represented and the suit was held to be good.

If it was found that they were not represented, the suit failed. In the present case both the Courts below have held that Nathuni was properly represented by his uncle Ramlakhan. There is a finding of fact by the trial Court that Ramlakhan is the karta of the joint family of which he and Nathuni are members. This fact was deposed to by Firangi Tewari ( P.W. 1 ) and was not challenged by the defendants in his cross-examination. This finding has been upheld by the learned Subordinate Judge and it is conclusive. In the case of Chandrika the trial Court held, as I have said, that his two elder brothers did not represent him. This view was not accepted by the learned Subordinate Judge in appeal. There is always a presumption in favour of jointness of a Hindu family. There is no suggestion that the family consists of any other member than Bidya, Kirtan and Chandrika. Chandrika is minor and, in my opinion, his two elder brothers, who are joint with him, effectively represent him also. The Karta of the family must be either of the two elder brothers. It should be borne in mind that these person are not mortgagees. The mortgagees were Sheogobind and Ramesher. The question is whether the estate of Sheogobind and Ramesher was represented by the persons on record. The learned Subordinate Judge has held that it was so represented and there is no legal defect in this finding. In my opinion, therefore, the appeal on this point fails.

There is, however, one matter which requires consideration and that is the question of interest. The interest stipulated in the mortgage deed is 24 per cent, per annum. This rate is certainly very high. The circumstance under which the mortgage was executed requires that relief should be given in respect of the interest. Defendant 1 is without any issue or a wife. There was some struggle between the plaintiffs on the one side and Ram Ajodhya ( defendant 2 ) on the other as to who should take his property on his death. Girvardhari appears to have been changing sides. Defendant 2 obtained a will in his favour. Thereafter Girvardhari went to the side of the plaintiffs. It was then that the mortgage in question seems to have been executed. The learned Subordinate Judge has reluctantly found that consideration did pass. Be that as it may, it is obvious that the object of this mortgage was to keep a lever against the claim of defendant 2, to the property of Girvardhari, and it is for this reason that the plaintiffs allowed the interest on the mortgage to accumulate so that the entire property of Girvardhari might be absorbed. The suit was not instituted till the mortgage deed was about to become barred by limitation. This was pointed out to Mr. A.B. Mookerji, the learned advocate for the mortgagees, and he very fairly consented to such reduction of interest as we consider just.

Under the peculiar circumstances of the case I think the plaintiffs should be allowed interest at six per cent per annum. I would, therefore, allow this appeal in part and direct that the plaintiffs should get the usual mortgage decree for the principal sum of Rs. 500 together with interest at the rate of six per cent per annum. A fresh mortgage decree for sale will be prepared in this Court. Six months time from to-day will be allowed for payment of the decretal amount. The plaintiffs will get the costs of the two Courts below on the sum which may be found due to them on the date of institution of the suit. The coats of this Court will be allowed to him on the sum found due up to the date the appeal to this Court was preferred. The defendants shall bear their own costs throughout.

Saunders, J.

I agree.