1. This is a plaintiff's appeal arising out of a suit for recovery of money on a hypothecation bond dated 15th August 1927. The bond was a mortgage-deed in favour of no less than six mortgagees. The plaintiff who is one of the mortgagees brought a suit and originally did not even implead his co-mortgagees, abandoned his security and wanted to obtain a decree for what he considered to be his share of the mortgage debt. On some objection being taken as to the indivisibility of the mortgage transaction, he impleaded the other mortgagees without in any way amending his relief. The suit was brought within six years of the registered document, but that period is now well over. Both the Courts below have dismissed the claim, holding that the plaintiff is not entitled to split up the single mortgage trasaction.
2. In appeal it is argued before us that It is open to the plaintiff to recover Ms share of the debt particularly when the other co-mortgagees did not come forward to oppose his claim. It seems to us that the case has to be looked at, not only from the point of view of the plaintiff-appellants, but also from the standpoint of the defendant mortgagors. They entered into one single transaction with a group of people to whom monies were due previously and with whom they contracted that the amount would be payable in one lump sum to them jointly and they jointly would have the right to recover the amount and would get the mortgaged property sold. If each one of them be allowed to bring a suit separately for his share of the mortgage debt the result would be that the mortgagor would be compelled to resist six separate suits and would be put to considerable inconvenience and harassment and such a view would encourage multiplicity of suits involving waste of time of the Courts as well.
3. As regards a suit brought by one of several mortgagees to recover his share of the mortgage debt, the point is well settled in view of the pronouncement of their Lordships of the Privy Council in Sunitabala Debi v. Dhara Sundari Debi 1919 P.C. 24. The only proper course is for the co-mortgagee to implead the other mortgagees as defendants and sue for a decree for the entire amount or the sale of the entire mortgaged property. He cannot get a decree for his share of the mortgage debt or a sale of a part of the mortgaged property. It seems to us that the same principle applies even where one of the mortgagees chooses to abandon the security. His abandonment would not bind the other co-mortgagees who are jointly interested in the whole amount, nor does it seem fair that one mortgagee should steal a march over the other co-mortgagees to recover his share of the mortgage debt, either by attaching the mortgaged property later on or by attaching other property of the mortgagor and leave his co-mortgagees in the lurch. Section 45, Contract Act, clearly lays down that when a person has made a promise to two or more persons jointly then, unless a contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives.
4. It was laid down by a Full Bench of this Court in Kandhiya Lal v. Chandar (1885) 7 All. 313, that when upon the death of the obligee of a money bond, the right to realise the money has devolved in specific shares upon his heirs, each of such heirs cannot maintain a separate suit for recovery of his share., of the money due on the bond. It was held that the Court should permit an action to be brought by the heirs when the party or parties suing are in a position to sue for the whole debt, otherwise to permit one heir to realize his share would be to alter the nature of the Contract and to subject the debtor to inconveniences and hardships. It was pointed out by another learned Judge in that case that Courts are bound to see that the debtors are not unduly harassed by representatives of a deceased creditor. In Ghafur Khan v. Kalandari Begam (1911) 33 All. 327, another Full Bench case of this Court, it was held that one debt creates one single and indivisible liability which gives rise to one single cause of action and that one of the heirs of the oblige of a money bond cannot sue or his share in the money due under the bond.
5. The learned advocate for the appellant relies on a single Judge decision of the Calcutta High Court in Radha Nath v. Nagendra Nath 1931 Cal 806 134 I.C. 767. But in that case the other co-mortgagees who had been impleaded as co-defendants had not put forward apparently any claim within the period of 12 years and the suit brought by one mortgagee was with reference to the whole of the mortgaged property. The learned Judge therefore pointed out that there was no question of the splitting up of the security in that case. The decision proceeded on the assumption that it was clear from the conduct of the co-mortgagees that they had no intention of claiming their share of the mortgage money. Those consideration do not apply to this case. We are accordingly of the opinion that the views taken by the Courts below that the suit is defective and cannot be entertained are perfectly correct. The appeal is accordingly dismissed with, costs.