Lindsay and Sulaiman, JJ.
1. This is a plaintiff's appeal arising out of a suit on the basis of a mortgage-deed dated the 14th of November 1873. The deed in question was executed by Deota Prasad, his two nephews Raghubir Singh and Kure Lai and Mussammat Ugar Kunwar, the widow of his deceased brother Prag Dat. It was in favour of Jwala Prasad and Bansi Dhar, the predecessors-in-title of the present plaintiffs, the mortgage-deed was executed for a sum of Rs. 3,000 and was payable in ten years with interest at the rate of 13-annas 4-pies per cent, per mensem. Out of Rs. 300 due on account of interest, Rs. 200, if not paid within the next six months, were to be compounded after the expiry of each such period. We may also point out one of the covenants of the deed under which it was stipulated that each of the three sets of mortgagors would be entitled to redeem his share of the mortgaged property on payment of a proportionate share of the mortgage-debt.
2. There was a prior mortgage by conditional sale under which the two villages mortgaged under the deed of 1873 had also been mortgaged. It is an admitted fact that in the year 1894 the present plaintiffs, in whose favour the previous deed of 1871 had stood, obtained a foreclosure decree in respect of one of the two villages mortgaged under the deed of 1873. Accordingly, the present claim is confined to the remaining village.
3. The present suit was instituted on the 6th of August 1910, within the extended period of limitation. No written statements were originally filed, and it was decreed ex part on the 5th of June 1911. On the 16th December 1912 an application for setting aside the ex part decree was filed on behalf of all the representatives of the mortgagors, the principal defendants on the record, except Mahendra Singh, and the decree on that application was set aside. We may note here that Puttain Singh the present defendant-respondent, was treated at that stage of the proceedings as a minor and was represented by a guardian ad litem. After the decree had been set aside a written statement by four of the defendants was put in but ultimately the case was compromised and a compromise was filed in Court on the 18th November 1913. This compromise was incorporated in a decree dated the 19th November 1913. As against the other defendants the suit was heard and decreed on the merits. A final decree for foreclosure was passed on the 14th April 1917.
4. In the year 1918 Puttain Singh put in an application for setting aside the decree passed against him on the allegation that in fact he had been a major all along and had been wrongly treated as a minor. He alleged that he had had no notice of the suit and that the entire decree was, therefore, a nullity as against him. Objections were raised to this application on behalf of the plaintiffs and evidence was led on both sides. The main issue which the learned Subordinate Judge took upon himself to consider was as to whether Puttain Singh had been properly represented as a minor. On the 2nd January 1919 the learned Subordinate Judge passed an order setting aside the decree as against Puttain Singh and restoring the case to the pending file as against him only. This was done because he came to the conclusion that Puttain Singh had really not been a minor and had been wrongly treated as a minor.
5. After the case had been rested so far as Puttain Singh is concerned, evidence was led again by the plaintiffs. The suit was ultimately decreed in part against Puttain Singh. The plaintiffs have come up in appeal and press their entire claim against the defendant Puttain Singh.
6. We may at the outset refer to one point which has been raised in appeal. The learned Advocate for the appellant wanted us to go into the evidence and consider whether the finding of the learned Subordinate Judge that Puttain Singh was in fact a minor, was or was not correct. On the other hand, the learned Advocate for the respondents has called our attention to a number of cases of this Court in which it has been laid down that as in such an order there was no error, defect or irregularity the affecting decision of that case the point cannot be opened. We are satisfied that this has been the view taken in the previous oases of this Court, vide the case of Qulab Kunwar v. Thakur Das 24 A. 464 : A.W.N. (1902) 136., Tasadduq Husain v. Hayat-un-mssa 35 A. 280 : A.W.N. (1903) 39, Kunja Mai v. Qauri Shankar 35 A. 280 : A.W.N. (1903) 39., and Nidha Lai v. The Collector of Bulandshahr 35 Ind. Cas. 209 ; 14 A.L.J. 610.
7. The case relied upon by the learned Advocate for the appellants, namely, Nand Bam v. Bhopal Singh 16 Ind. Cas. 1 : 34 A. 592 : at. P. 598 : 10 A.L.J. 130., is clearly distinguishable inasmuch as there an application for revision had been presented and the question had not been raised in an appeal from the final decree. We are, therefore, of opinion that we must accept the view taken by the learned Subordinate Judge that Putain Singh had in fact been major. There is no irregularity or defect in the procedure.
8. Coming to the merits of this case we may point out that the mortgage-deed in question was executed by three sets of persons. The learned Subordinate Judge has, found that these three branches of the family were separate and the learned Advocate for the respondents has in express terms conceded that he is not prepared to challenge that finding. The result, therefore, is that we must take it that one third share belonging to Deota Prasad, one-third share belonging to Kure Lal and Raghubir Singh and one-third share in the possession of Mussammat Ugar Kunwar inherited by her from her deceased husband had been mortgaged under this deed. So far as the one-third share of Deota Prasad is concerned, it is manifest that the present defend-dant-respondent is not entitled to challenge it on the ground that it was not for any legal necessity. Deota Prasad being separate form the other members and having no son or any person joint with him was the absolute owner of his property and was entitled to mortgage it for any reason he pleased. We have already pointed out that the right of each set of the mortgagors to redeem his one-third share was fully preserved. The plaintiff's claim as against the one-third share of Deota Prasad cannot be seriously disputed. The result will, therefore, be that Putain Singh will be entitled to redeem this one-third share on payment of one-third of the entire amount due on the mortgage-deed with interest up to date. The question of interest we shall hereafter consider separately. In case of default of payment, this one-third share shall stand foreclosed.
9. As to the interest of Kure Lal and Raghubir Singh we are of opinion that Dutain Singh is entitled to put the plaintiffs to proof of necessity for this mortgage debt. Raghubir Singh was the grandfather of the plaintiff. It is true that the plaintiff himself was not born at the time of the mortgage-deed, nevertheless there were other members in his family who were then alive. His right to Challenge this transaction, therefore, cannot be disputed. Under the mortgage-deed there were three items which were borrowed; Rs. 946 were received in cash in order to pay off the money due under a decree against Musammat Ugar Kunwar. Rs. 450 were required to pay off the arrears of instalments on account of a mortgage-deed (of the year 1871) which had been executed by Prag Dat as well as the other male mort gagors. And a sum of Rs. 1,604 was paid in cash. There is no evidence on the record to show that the decree against Mussammat Ugar Kunwar was anything but a personal decree against her. We are, therefore, unable to hold that Kure Lai and Raghubir Singh were in any way bound to pay it off or to undertake liability there for. As regards the sum of Rs. 1,604 the learned Subordinate Judge has found that, on the plaintiff own showing, this sum was required in connection with the expenses of the marriage of Musammat Ugar Kunwar's daughter. Such a marriage, though a necessity for Musammat Ugar Kunwar, should not be considered to be a necessity for Kure Lal and Raghubir Singh who had been separate from her deceased husband. We are, therefore, of opinion that qua this one-third share the defendant Putain Singh is not bound to pay this amount. The result, therefore, is that, so far as the one-third share of the defendant's branch as concerned, it can be redeemed by him on payment of one-third of Rs. 450 with interest up to date. The default of payment of this sum this share also will stand foreclosed.
10. Coming to the one-third share which was in the possession of Musammat ugar Kunwar, we may note that the first item of Rs. 946 which was due under a decree is an item for which there is no other direct evidence as to the exact necessity. The learned Advocate for the appellants has asked us to presume, after this long lapse of time, specially having regard to the consent given by the other reversioners, that this item must have been borrowed for necessity. If there had been any recital in the deed showing the nature of the necessity we might have made that presumption. There is, however, only this fact that a decree had been passed against Musammat ugar Kunwar. We do not know under what circumstances this decree had been passed and to what extent she was liable under it. We are, therefore, unable to differ from the view taken by the learned Subordinate Judge that this item cannot be held to have been incurred for legal necessity. On the other hand, we are unable to appreciate the reasoning on which he has disallowed the sum of Rs. 1,604. The plaintiff's case was that this sum had been incurred in order to meet the expenses of the marriage of the daughter of Musammat ugar Kunwar. In support of this case the plaintiffs produced two witnesses, Patrakhan and Lachmidhar, whose statements were that this sum was required for the expenses of the marriage. So far as Patrakhan is concerned, the learned Subordinate Judge distinctly believed his testimony in connection with the execution of the document by the lady. He went on to remark that this witness had also stated that this sum was required for the expenses of the marriage of the daughter and then added,
It would thus appear that, excepting the amount of Rs. 450, the rest of the money under the mortgage in suit was taken by Musammat ugar Kunwar for her sole use.
11. The other witness Lachmidhar has not been referred to by him at all. Our attention has been drawn to a subsequent mortgage-deed dated the 14th of March 1883 under which Raghubir Singh had borrowed a sum of money for the expenses of the marriage of a daughter of this daughter. As the learned Subordinate Judge has believed the evidence of Patrakhan and as it is most likely that the other male members of the family would not have joined in the execution unless they had been Satisfied that this large sum was being borrowed for some urgent necessity we are of opinion that this sum should be allowed.
12. We may note here that the learned Subordinate Judge had recorded a finding that the plaints had failed to prove that the mortgage-deed in question had been attested in the manner required by law. This finding has not been supported by the learned Advocate for the respondent. In fact, the mortgage-deed was executed prior to the doming into force of the Transfer of Property Act and no question of attestation really arises. The learned Advocate for the respondent has not disputed the finding that Musammat ugar Kunwar had actually executed this deed and borrowed this sum.
13. The last argument urged on behalf of the respondent is that, inasmuch as the plaintiffs themselves had foreclosed one village in the year 1894 they are not now entitled to throw the entire burden of the mortgage-debt on the remaining village. In our opinion this contention has no force. In the the first place, the defendant Puttain Singh is the representative of the mortgagor himself and is not a transferee from the mortgagors. No question of contribution, therefore, at all arises. In the next place, the mortgage was entitled to recover his debt by foreclosure of any part of the mortgaged property. One village has already been foreclosed on the strength of the prior deed and, in our opinion, the plaintiff can now foreclose the remaining village for the amount due on the second deed.
14. The other question that remains is one of interest. The learned Subordinate Judge came to the conclusion that interest at the contract rate would run only for the period of ten years fixed in the mortgage-deed, and that thereafter there was no stipulation for payment of any interest and the utmost amount which the plaintiffs could get would be interest for six years prior to the suit by way of compensation.
15. We are unable to agree with this view. There is, admittedly, no provision in the mortgage-deed under which it was stipulated that interest would cease to run after expiry of tea years. The ordinary presumption is that money was lent and interest was agreed to be charged all along. There is an express provision for payment of interest at a fixed rate at the expiry of the term. There is also a condition in the deed that,
If we fail to pay up the money the mortgagees shall have power to foreclose the property mortgaged in lieu of the entire amount due to them.
16. There is also a covenant to pay compound interest at the contract rate on default of payment of interest. We are, therefore, unable to distinguish this case from that reported in Mathura Das v. Baja Narindar Bahadur 19 A. 39 : 23 I.A. 138 : 1 C.W.N. 52 : 6 M.l.J. 214 : 7 Sat P.C.J. 88 : 9 Ind. Dec. (N.S.) 25, (P.C.) or Bindesri Naik v. Ganga Saran Sahu 20 A. 171 : 2 C.W.N. 129 : 15 I.A. 9 : 7 Sat. P.C.J. 273 : 9 Ind. Dec. (N.S.) 471, (P.C.). The learned Subordinate Judge has relied on a case reported in Balwant Singh v. Qayan Singh 21 ind. Cas. 253 : 11 A.L.j. 829 : 35 A. 534 : In that case it was pointed out that the question depended on the proper iterpretation of each document. The learned Chief Justice who delivered judgment in that case distinguished it in the later case in Abdul Ahad v. Mahtab Bibi 24 Ind. Cas. 674. We are, therefore, satisfied that the intention of the parties must have been that interest would be payable even after the expiry of the time fixed and that there was no stipulation on behalf of the mortgagees that interest would cease to run, as soon as the ten years expired. It is true, that the mortgagees have waited for all these years in bringing the suit for fore closure; on the other hand, the mortgagors also have not thought fit to redeem it earlier. In our opinion the interest, therefore, at the contract rate will be charged up to the date fixed for payment.
17. The result, therefore, is that the decree of the Court below is modified to this extent that, as against Puttain Singh, defendant-respondent, a preliminary decree for foreclosure in the ordinary form against one-third share of Deota Prasad on payment of one-third of the total amount due under the mortgage-deed with interest at the contract rate up to the date to be fixed by this Court's decree (which will be six months from the present day) will be given.
18. As against the one-third share of Raghubir Singh and Kure Lai there will be a preliminary decree for foreclosure in the ordinary form on payment of one-third of Rs. 450 with interest at the contract rate up to the data fixed for payment. In default, the property will be foreclosed.
19. As against the one-third share of Musammat Ugar Kunwar there will be a preliminary decree for foreclosure on payment of one-third of Rs. 450 with interest up to the date fixed for payment plus Es. 1,604 with interest at the contract rate up to the date fixed for payment at the same rate. In case of default the property will be foreclosed.
20. This modification of the decree is only in favour of Puttain Singh, defendant-respondent. So far as concerns the other defendants, who are parties to the compromise decree, as against whom the decree has not been set aside and a final decree has been passed, their rights and liabilities will be determined by the former decree and will not be affected by the present decree. As the appeal has succeeded, in part and failed in part we direct that the plaintiffs-appellants shall get half their costs incurred here and in the Court below since the date of the restoration against Puttain Singh who will bear his own costs.