J.P. Jain, J.
1. This is a second appeal by the defendant, Mool Chand, against whom a decree for Rs. 1,209/- as arrears of rent and for ejectment from the suit premises was passed by the Civil Judge, Jaipur City and upheld in appeal by the District Judge, Jaipur City.
2. Mool Chand defendant is the owner of the house F-150 in residency area of the C-scheme. Jaipur. He mortgaged this house with possession by a registered mortgage deed dated 12-9-1956 with Prasad Dass Banerjee and his brother Narain Dass Banerjee for a sum of Rs. 15999/-. By a separate document of the same date Mool Chand was accepted as a tenant on a portion of the said house. The defendant thus continued to be in possession of that part of the house. A rent note (Ex. 1) was executed and the mortgagor agreed to pay Rs. 93/- p.m. as rent for the said part of the house. Mool Chand paid the rent for two months, upto 12-11-1956. By the rent note Ex. 1 the period of tenancy was fixed for a Period of one year. It was also agreed that if the rent was not paid for a period of four months, the mortgagor will be liable to be evicted from the suit premises, Prasad Dass died intestate and without leaving an issue on 4-4-1957. Mool Chand having not paid the rent after 12-11-1956. Narain Dass served him with a notice asking him to quit the suit house by 12-11-1957. Mool Chand did not vacate the suit house and, therefore, Narain Dass instituted the suit out of which this appeal has arisen, on 23-12-1957 in the Court of Civil Judge Jaipur City. He claimed Rs. 1,209/- as arrears of rent and mesne profits at the rate of Rs. 93/- p. m. from 12-11-1956 to 12-12-1957 and the eviction of the defendant on the ground of default from the suit house.
3. The suit was resisted by Mool Chand. He admitted the mortgage and having executed the rent-note. His plea, however, was that on 13-1-1957 he paid an amount of Rs. 11,000/- towards the principal amount of the mortgage and Rs. 186/- towards rent for two months due from him. He also produced agreement Ex. A-1 and receipt Ext. A-2 alleging that they were executed by Prasad Dass. On the basis of these two documents it was alleged that Prasad Dass agreed not to charge rent for the suit house in future. It was, however, admitted that the only amount payable by him towards the mortgage money is the sum of Rs. 4,999/-. Another plea, raised by him was that Prasad Dass having died Narain Dass alone was not entitled to maintain the suit.
4. The learned Civil Judge who tried this suit did not accept the defendant's case that he paid the amount of Rs. 11,000/- and Rs. 186/- towards rent and that Prasad Dass had agreed not to charge any rent after 13-1-1957. As for the plea regarding the maintainability of the suit he held that Narain Dass was the sole heir of Prasad Dass by survivorship. According to the learned Judge Bankim Chandra and Arun Gopal, though real brothers of Prasad Dass, were living separately and as such had no right in the suit property. And that apart the relinquishment deed Ex. 5 having been executed by them on 7-1-1960, the defect in the suit, if any stands removed. The plaintiff's suit was accordingly decreed in full on 3-1-1961.
5. Being aggrieved of this decree, defendant preferred an appeal. The learned District Judge Jaipur City agreed with the conclusions arrived at by the learned trial Judge on both the points. The defendant's appeal was dismissed vide his judgment dated 6-8-1966. It is this decree which is subject-matter of challenge before me in second appeal. It may be mentioned here that Narain Dass plaintiff died during the pendency of tine first appeal. His legal representatives were brought on record and they were respondents before the first appellate Court and are likewise here.
6. On behalf of the appellant It has been strenuously urged that by the document payment of Rs. 11,000/- towards mortgage amount is fully established and the agreement Ex, A-1 along with the receipt Ex. A-2 having been proved to the hilt, the conclusion drawn by the Courts below, is not only erroneous, but perverse. On the other hand the learned counsel for the respondent has supported the finding of the first appellate Court Mr. Kasliwal learned counsel for the appellant has taken me through the evidence in this regard. Ex. A-1 is an agreement alleged to have been written on behalf of Prasad Dass and it purports to bear the signatures of Prasad Dass. Ex. A-2 is the receipt alleged to have been signed by Prasad Dass acknowledging the receipt of Rs. 11,000/- towards the mortgage money. To prove these two documents Chandra Singh D. W. 2 end Noor Mohammed D. W. 3 have been examined. Both have been labelled as chance witnesses. Mool Chand has also examined himself to prove the genuineness of these documents. Both the Courts have disbelieved their evidence and did not accept the theory set up by the defendant. After having considered the evidence and the circumstances of the case, I am of the opinion that the Courts below were right in holding that the payment of Rs. 11,000/- was not made, I find no cogent reason to disagree with the view taken by them. The following circumstances of the case deserve mention. The defendant was in need of money for constructing first floor of his house and to complete construction work on the ground floor. It was only on 12-9-1956 he secured the loan of Rs. 15,999/-from Prasad Dass and Narain Dass by mortgaging the very house with possession. According to the mortgagor-defendant the amount of Rs. 11,000/- was paid back to Prasad Dass on 13-1-1957 just after four months. There is nothing is the evidence to bear out a convincing source from where he managed to get that money. That apart there is no satisfactory explanation forthcoming from the defendant as to why he thought fit to pay a considerable amount of the mortgage money to one brother Prasad Dass only. He has admitted in evidence that Narain Dass was also in Jaipur at that time when the payment was made to Prasad Dass, He knew it very well that the mortgagees were two and the loan was secured from both of them. Another important reason that has been considered by the Courts below is that Prasad Dass was mentally deficient. This is very well borne out from the evidenoe. There are good reasons in support of the finding arrived at by the Courts below. In view of these circumstances I am unable to interfere with the finding of fact while sitting in second appeal.
7. Another contention raised by the learned counsel for the appellant is that after the death of Prasad Dass, Narain Dass alone was not entitled to sue. Reliance has been placed on the provisions of Section 45 of the Contract Act. It is submitted that the finding of the learned first appellate Court that Narain Dass was the sole heir of Prasad Dass by survivorship is based on an errorneous view of law. According to the learned counsel there is no dispute that Tarapad Banerjee had four sons-- Prasad Dass, Bankim Chandra. Arun Gopal and Narain Dass--and that they are Bengalis by origin. Accordingly they will be governed by the Bengal School of Hindu Law and the principles of survivorship will have no application to this case, and the fact that Bankim Chandra and Arun Gopal were living separately, will not affect their right in inheriting property left by their brother Prasad Dass. It is argued that all the other brothers along with the plaintiff were the heirs of Prasad Dass and since the suit has been filed by Narain Dass alone without impleading Bankim Chandra and Arun Gopal, the present suit could not be maintained.
8. In answer to this, submission on behalf of the respondent is twofold. One, that Narain Dass and Prasad Dass jointly acquired the property by mortgage, as such after the death of Prasad Dass. Narain Dass alone will become the owner. Two, that by the document Ex. 5 dated 7-1-1960 Bankim Chandra and Arun Gopal relinquished the rights whatever they had in the property left by Prasad Dass in favour of Narain Dass. Though this relinquishment took place during the pendency of the civil suit in the trial Court. It is urged, that the document has been brought on record and has been proved, the Court is therefore, bound to take notice of this subsequent event. According to Mr. Dutt representing the respondent, Narain Dass had perfected his right on 7-1-1980 when the relinquishment deed was executed by his two brothers Bankim Chandra and Arun Gopal and the suit cannot be dismissed on the around that two other heirs of Prasad Dass were not impleaded in the suit. In support of this contention he has cited some authorities. I will deal with these decisions at the appropriate stage. Mr. Kasliwal submitted that the alleged relinquishment effected by the document Ex. 5 on 7-1-1960 by Bankim Chandra and Arun Gopal does not relate to the subject-matter of the suit. According to his reading of the document what the two brothers had relinquished by the document Ex. 5 is the Prasad Dass's share of the money that the mortgagee was likely to receive on redemption. The cause of action in the present suit arises from the mortgagees' rights in the mortgaged property as lessors and the default in the payment of rent by the lessee on the basis of the rent-note Ex 4. He has also disputed the broad proposition of law propounded by Mr. Dutt that the Court is bound to take into consideration, the subsequent events. He has no quarrel with the proposition to this extent that if there is a subsequent change in law or if there is a death of one of the parties to the suit the Court will have to take notice of that fact as it is supposed to settle the dispute in accordance with the law as it stands on the day it decides the case or settles the equities between the parties. He has also cited some decisions in support of his view.
9. The first question that arises for my determination is as to which school of law was applicable to Prasad Dass. It is admitted that forefathers of Prasad Dass and Nrain Dass migrated from Bengal and family of Tarapad Baneriee has been staying in Jaipur for a number of years. It is absolutely settled that the law of succession is in any given case, to be determined according to the personal law of the individual whose succession is in question. _ To quote a passage from Mayne's Hindu law, 'Primia facie any Hindu residing in a particular province of India is held to be subject to the particular doctrines of Hindu law recognised in that province ............ But this law is not merely a local law. It becomes the personal law, and part of the status of every family which is governed by it; consequently where any such family migrates to another province governed by another law, it carries its own law with it. Of course, if nothing is known about a man except that he lived in a certain place, it will be assumed that his personal law is the law which prevails in that place. In that sense only is domicile of importance. But if more is known then in accordance with that knowledge, his personal law must be determined, unless it can be shown that he has renounced his original law in favour of the law of the place to which he migrated'. So great is the tenacity with which Hindus hold to their ancient usages and follow their ancient traditions and customs that mere length of time in itself makes no difference. In the present case Narain Bass's family admittedly migrated from Bengal, it must be presumed that it carried its personal law with it when it migrated to Jaipur, a place in Rajasthan. It is also not disputed by Mr. Butt that Bayabhaga system of law prevailed in Bengal, accordingly I have no difficulty in holding that the family of Tarapad Baneriee will be governed by Dayabhaga school of Hindu law.
10. Prasad Dass died intestate and without leaving an issue or widow on 4-4-1957. Bayabhaga system of inheritance will apply to his case. Dayabhaga recognised only one mode of devolution, namely, succession. It does not recognize the rule of survivorship even in the case of joint family property. The reason is that while every member of a Mitakshara joint family has only an undivided interest in the joint family property a member of a Dayabhaga joint family holds his share in quasi-sevenalty, so that 5t passes on his death to his heirs as if he was absolutely seized thereof and not to the surviving coparceners as under the Mitakshara law. Now succession according to Dayabhaga school is governed by the capacity for conferring spiritual benefits on the deceased. The foundation of the doctrine of spiritual benefit is the Parvana Sradha ceremony. There are three classes of heirs according to this system of law, namely. (1) sapindas, (2) sakulavas and (3) samanodakas. The sapindas succeed before the sakulyas, and the sakulyas succeed before the samanodakas. The foundation for regulating the order of succession being the doctrine of conferring spiritual benefit the first to succeed among the sapindas are those to whom he is bound to offer a pinda while he is alive. This group consists of six relations. They include three immediate paternal ancestors, being his father, grandfather, great grandfather, and his three immediate maternal ancestors, being his maternal grandfather, maternal great grandfather, and maternal great-great grandfather. The second group of the persons to succeed will be of those who. on bis death, are bound to offer a pinda to him. In this group are included those persons to whom he (deceased) stands in the relation of father, grandfather, great grandfather, namely his son grandson and great grandson, end those persons to whom he stands in the relation of maternal grandfather, maternal great grandfather, and maternal great-ereatgrand father, namely his daughter's son son's daughter's son and grandson's daughter's son. These altogether six relations will fall in this category of sapindas. Third category of sapindas who can succeed will be of those who are bound to offer a pinda to the ancestors to whom he is bound to offer a pinda, those ancestors being his three immediate paternal ancestors and his three immediate maternal ancestors. This third- set of sapindas can be divided into four groups vide Mulla's Principles of Hindu Law p. 145, 13th edition. First group of sapinda will consist of his relation brother, brother's son, brother's son's son. Second group will consist of nine relations sister's son; father's sister's son; grandfather's' sister's son etc. The third group will again consist of nine relations, maternal uncle, maternal uncle's son and maternal uncle's grandson etc. The fourth group consisting of nine relations will include maternal aunt's son; maternal grandaunt's son, maternal great-grandaunt's son; etc. The brother will succeed when there is no sapinda of the first and second categories. In the present case there is no sapinda of the first category and the second category. Nearest sapindas are the brothers of the deceased Prasad Dass. According to this order of succession as governed by Dayabhaga school of law. Bankim Chandra Arun Gopal and Narain Dass being the sapindas of Prasad Dass of the third category will succeed Prasad Dass equally. The learned Courts below in having held that Narain Dass was the sole heir by survivorship is erroneous and contrary to the law of inheritance recognised by Daya-bhaga system. For the purpose of succession it is immaterial that Bankim Chandra and Arun Gopal were living separately, and it would not make any difference that Narain Dass was living jointly with Prasad Dass. The fact that joint family property was partitioned already, is of no consequence and will not affect the order of succession of Prasad Dass.
11. Next question that emerges for consideration is about the applicability of Section 45 of the Indian Contract Act. This section provides for the devolution of joint rights., and it reads as follows:--
'Devolution of joint rights. When a person has made a promise to two or more persons jointly, then, unless a contrary intention appears from the con-tract, the right to claim performance rests as between him and them, with them during their joint lives, and after the death of any of them, with the representative of such deceased person jointly with the survivor or survivors, and after the death of the last survivor, with the representatives of all jointly'. The mortgage was executed by Mool Chand in favour of both Prasad Dass and Narain Dass jointly. By a separate transaction, Mool Chand got himself admitted as a tenant of the mortgagees on a part of the house and to that effect he executed the rent-note Ex. 1. He agreed to pay Rs. 93/- per month as rent of the suit house with regard to which he was admitted as a tenant. There being no contract to the contrary the right to claim performance of the contract of tenancy rested between Mool Chand on the one hand and the two mortgagees Prasad Dass and Narain Dass on the other. In other words while both the lessors were alive, they could sue the defendant for rent and for eviction if they could seek under the law of the land. After the death of Prasad Dass the right to claim performance survived with the representatives of deceased Prasad Dass jointly with Narain Dass. This section thus regulates the devolution of the joint rights. In all cases where there is one promise in favour of two or more joint promisees, it is not open to one of the joint promisees to sue alone either for the performance of the promise in its entirety or to the extent of his share. This rule is fully applicable in a suit for ejectment or against the recovery of loan. In Rama Motibhai v. Dalwadi Tupoo Rama. AIR 1956 Bom 264 their Lordships of the Bombay High Court took the view that where it is true that against a trespasser one co-owner on behalf of all the co-owners can maintain an action, it is equally well settled that if an action is to be filed against a ten-ant for recovery of possession, all the co-owners must be joined in the suit. This decision quoted with approval, the following observations of the learned Chief Justice of that Court in another case:--
'............as far as the trespasser is concerned the principle seems to be that any co-owner is entitled to defend the title to the property in which he is interested by seeking to eject a person who has no right to the property at all, but when we come to the case of a tenant, all persons interested in the property must join in filing the suit'.
12. Reference may also be made to Rameshwar Bux Singh v. Ganga Bux Singh. AIR 1950 All 598 (FB) where it was held that a suit by one of the mortgagees is not maintainable. Ghulam Hasan, J. with whom other members of the Bench concurred observed as follows:
'After careful consideration of the authorities I am of opinion that the suit by one of the mortgagees, is not maintainable either for the whole or for a part of the share in the mortgaged property. The principle of the indivisibility of the mortgage and the principle that all the joint promisees must combine to enforce the claim against the promisors applies. It is not possible to split up the mortgage and permit one of the mortgagees to enforce his claim either for the whole or for a part, nor is it possible for him as one of the joint promisees to enforce the claim without impleading his co-promisees either as plaintiffs or, in the case of their refusal, as defendants within the Period of limitation',
13. I am in respectful agreement with this statement of law.
14. In the instant case the suit for ejectment and recovery of rent was instituted by Narain Bass alone. I have already held above that Bankim Chandra and Arun Gopal being other brothers of deceased Prasad Dass inherited his rights in the mortgaged property along with Narain Dass. Therefore, all of them should have ioined as plaintiffs in the suit. Of course, in the event, they had refused to come as plaintiffs, they could be Ioined as defendants. In the absence of these two brothers the suit by Narain Dass alone could not be maintained. It may be pointed out here that in view of the terms contained in the rent-note Ex. 1 the tenancy was for a fixed period and it terminated by efflux of time and after the expiry of the period of tenancy, the defendant became statutory tenant, A notice under Section 106 of the Transfer of Property Act was not therefore, necessary. Mr. Kasliwal has not rightly challenged the validity of the notice. He confined his submission only for the effect that Narain Dass alone is not entitled to seek eviction and recover arrears of rent, I have held above that this was contrary to the provisions of Section 45 of the Contract Act and as such the suit by Narain, Dass alone could not be maintained.
15. Still another submission of Mr. Dutt deserves consideration. This submission is based on the relinquishment deed alleged to have been executed by Bankim Chandra and Arun Gopal in favour of Narain Dass on 7-1-1960. This document is Ex. 5. It is a registered document. It has been proved. Its execution cannot, therefore, be disputed. Controversy however, lies with regard to its construction and whether it can be taken into consideration that being a subsequent event. It has been stated in this document by the executants Bankim Chandra and Arun Gopal that out of the loan of Rs. 15,999/- to the mortgagor, Frasad Dass paid Rs. 2,900/- only. He, on the date of his death that is on 4-4-1957, was entitled to the sum of Rupees 2,900/- principal and Rs. 700/- interest, in total Rs. 3,600/-. The executants being entitled to two third share in that amount, by this deed. purported to relinquish their right in that mortgage money which was likely to be received on redemption. After having read this document, I am in agreement with the construction put by Mr. Kasliwal of this deed. What In fact has been relinquished by the executants, is their two third share of the mortgage money which may be received on redemption of the mortgage. There is no mention regarding the rights of Prasad Dass as a lessor. The lease in lavour of Mool Chand by mortgagees subsisted on the date Prasad Dass died and the suit was filed by Narain Das claiming the performance of the lessor's right to recover the arrears of rent and eviction of the tenant, Mool Chand. The executants do not purport of relinquish that Tight in favour of Narain Dass. The receipt of the mortgage money on redemption was a future right. Relinquishment of that right by Bankim Chandra and Arun Gopal does not affect the right of Prasad Dass having devolved on his heirs. That apart it has not been brought in evidence that Prasad Dass's share in mortgage money was only Rs. 2,900/-, Narain Dass also did not say so in his plaint or in his statement at the trial. In this view of the matter this relinquish-mem deed does not help Narain Dass in entitling him to sue the defendant alone without joining other legal representatives of deceased Prasad Dass. It was not the case of Narain Dass. that the cause of action of the suit was assigned or transferred to him. It is admitted that this document was brought into existence during the pendency of this suit in the trial Court It is definitely a subsequent event.
16. For the view that I have taken of this document. It is not neces-sary to decide the controversy as to whether the Court is bound under the circumstances of the present case to take into account the relinquishment deed.
17. I am informed by the learned counsel for the parties that in execution of the decree under challenge the defendant's right in the property has been sold out on 2-8-1969 and it has been purchased by the decree-holder himself. This cannot, however, affect the decision of this case. If the respondent has taken advantage of the decree which could not have been passed, he is liable to restore the benefit on the decree being reversed. The trial Court will take suitable action when the appellant moves the Court by an appropriate application.
18. The result is that the appeal succeeds, and it is hereby allowed. The judgment and decree passed by the Courts below are set aside and the suit instituted by Narain Dass is dismissed. Having regard to the circumstances of the case. I direct the parties to bear their own costs throughout.