1. This appeal arises out of a suit for the sale on foot of a mortgage deed, Ex. A, executed in 1911 by one Peer Muhammad in favour of Alia Pichai Rowther who was the mortgagor's brother-in-law as well as his son-in-law. The mortgagee died in 1913 leaving a number of heirs some of whom are also interested in the equity of redemption by reason of their relationship to Peer Muhammad. It is clear from the plaint itself that no payment either towards any portion of the principal or towards interest was made in respect of this mortgage between 1911 and the date of the suit. In August, 1926, Allapichai Rowther's widow, that is, the seventh defendant and two of her daughters assigned their interest in the mortgage bond to the plaintiff under Ex. B, and this suit was filed in September, 1926. Besides the persons who are also the heirs of the mortgagor the only other co-heir to the mortgagee's estate, so far as we have been able together, is one Nagur Kanni Rowther who was impleaded as the ninth defendant in the case.
2. In view of the arguments urged before us, on behalf of the appellants, as to the frame of the suit, it is necessary to mention that the assignors were entitled only to 19/24th share in the mortgagee's estate and that the assignee therefore became entitled only to that share of the mortgage money. It also appears that the assignors had somehow become interested in a portion of the hypotheca and it is accordingly stated in the deed of assignment that the assignee should proceed only against the rest of the hypotheca. In these circumstances the plaint sets out the fact that the plaintiff was entitled only to a 19/24th share in the mortgage amount and in paragraph 14 of the plaint the plaintiff works out the amount due under the mortgage deed at Rs. 7,644 and stated that 19/24th share therein is Rs. 6,051-8-0 and after remitting therefrom on his own choice Rs. 551-8-0 the plaintiff limits his claim to Rs. 5,500 which he takes as the figure for the purposes of court-fees and jurisdiction.
3. A written statement was filed on behalf of defendants 1, 5 and 4 the widows and the son of the mortgagor. Neither in this written statement nor at the stage when the issues were framed in the case was any objection taken to the frame of the suit. Nor does it appear that any such objection was urged at any time before judgment was given in the lower Court. The issues framed in the case related to three pleas (1) that the plaint bond was not true and supported by consideration; (2) that the assignment relied on by the plaintiff was not true and supported by consideration; and (3) that the suit was barred by limitation. I may say at this stage that it is unnecessary for the purpose of this appeal to notice any further the pleas involved in issues 2 and 3 because there is no prima facie basis for the second issue, nor is there any substance in the third issue.
4. In the appeal, however, objection has been taken to the frame of the suit. The learned Counsel for the appellant laid some stress upon the fact that the plaint claim relied against some of the mortgaged properties, but realising that the omission to claim relief as against the other properties-- whatever other consequences it may involve--was not fatal to the maintainability of the suit, he tried to press it into service as part of his objection based on the proviso to Section 67 of the Transfer of Property Act, especially when taken along with the fact that the plaintiff is limiting his claim to 19/24th share of the mortgage amount. Section 67 of the Transfer of Property Act no doubt provides that a mortgagee or co-mortgagee cannot claim to recover a fraction of the mortgage amount from a proportionate fraction of the mortgaged property. But in the present case, the omission of some of the mortgaged properties from the suit has, in view of the provisions in the assignment deed, nothing to do with the limitation of the plaintiff's claim to a fraction of the mortgage amount. There is accordingly no force in the objection about the omission to include some of the hypotheca.
5. The objection that the plaint should have in some manner comprised the whole claim under the mortgage might have had some force and might have required more serious notice if the objection had been raised in time. It cannot be said that the objection is purely one of law arising on the pleadings, because admittedly one of the mortgagor's heirs, that is, the first defendant is also entitled to a share in the mortgage money. The other co-heir who is said to be entitled to a l0/72nd share in the mortgage amount is the ninth defendant. He has not filed any written statement and what exactly his position is either in relation to the first defendant or in relation to the plaintiff we have no means of knowing. It is possible that these two heirs of the mortgagee did not wish to enforce their claim under the mortgage or their claim has been otherwise satisfied; and in the latter alternative the plaintiff will certainly be entitled to limit his claim to the portion which is due to himself. In this view, 1 do not think that this Court will be justified in allowing this objection to the frame of the suit to be raised for the first time at this stage.
6. But as this question as to the frame of the suit has been argued at some length before us, I think it right to make a few observations on one or two aspects of the matter. On behalf of the appellant, Mr. Bhashyam Aiyangar asked us to read the decision of the Privy Council in Sunitabala Debt v. Dhara Sundar : (1919)37MLJ433 Debt Chowdhuranii as laying down a rule in addition to that contained in the proviso to Section 67 of the Transfer of Property Act. The suit as originally framed in that case undoubtedly contravened that prohibition because the plaint in that suit claimed a sale of a half share in the mortgaged property in respect of the plaintiff's half share of the mortgage amount. That defect was remedied by the directions given by the High Court for the amendment of the plaint to the following effect:
If in the opinion of the Court the plaintiff is held to be not entitled to a peer decree on the footing of a mortgage for the principal sum of Rs. 80,000 then a usual mortgage decree may be passed in favour of the plaintiff and the defendant No. 3 for the amount found due up to the period of grace to by the Court upon the basis of the entire mortgage-money, that is Rs. 1,60,000.' (See the report in Sunitabala Debi v. Dhara Sundari Debi Chowdhurani (1919) 37 M.L.J. 483 : L.R. 46 IndAp 272: I.L.R. 47 Cal. 175 (P.C.).)
7. Their Lordships of the Privy Council construed the mortgage as being a single mortgage for Rs. 1,60,000 in favour of the plaintiff and the third defendant as tenants-in-common and repelled the contention that the document evidenced two mortgages in favour of two mortgagees for Rs. 80,000 each. Even on this view, the objection under Section 67 of the Transfer of Property Act would seem to have been obviated by the amendment directed by the High Court. When the matter was before the Judicial Committee, the observations of their Lordships seem to proceed on the lines laid down by the Court of Appeal in England in Luke v. South Kensington Hotel Company (1879) 11 Ch.D. 121 namely, that not merely should all the mortgagees be before the Court whether as plaintiff or as defendants but that the suit should be so constituted as to make it possible for the Court eventually to give a decree in respect of the whole mortgage amount and not merely in respect of the plaintiff's share. If this was all that their Lordships intended to lay down, the amendment directed by the High Court would seem to give effect to that principle. But their Lordships observe that the amendment directed by the High Court ' is not properly worded '; the judgment however gives no clear indication as to what in their Lordships' opinion was the defect.
8. This decision was considered by Ramesam, J., in the judgment reported in Seth Bansiram Jashamal v. Gunnia Naga Aiyar : AIR1930Mad985 . The learned Judge was discussing the question from the point of view of the court-fee which a co-mortgagee should in similar circumstances be called upon to pay when suing on the mortgage, limiting his claim to his share of the mortgage amount. The learned Judge would seem to think that the observations of the Judicial Committee would be complied with if the co-mortgagee who did not join as the plaintiff was impleaded as the defendant and the relief was not restricted to a share of the mortgaged property. In his opinion it was necessary that the plaintiff should ask for a decree for the whole amount due under the mortgage or pay court-fee thereon. If it were necessary to decide the question, I should have felt some difficulty in agreeing with some of the reasons given in support of this view. The hardship involved in calling upon the plaintiff to pay court-fee on the full amount does not seem to be a proper reason to be relied upon in determining the proper frame of the suit. But for Section 3 of the Suits Valuation Act, it might perhaps be possible even to obviate this hardship by a particular construction of Section 7,Clause(l)of the Court-Fees Act, holding that the words ' according to the amount claimed ' in that clause may refer to the amount claimed by the plaintiff for himself. An illustration may help to make my meaning clear. Take the case where a puisne mortgagee includes a prior mortgagee as a party defendant in the action and prays that the property may be sold free of mortgages and that out of the proceeds the prior mortgagee may be paid in the first instance and the balance applied in discharge of the plaintiff's claim. Order 34 of the Code of Civil Procedure and the decree forms appended to the Code undoubtedly contemplates such a case. There is no reason for holding that in such a case, the plaintiff should value his suit by adding even the amount payable on the prior mortgage or pay court-fee thereon. If this principle could be extended, by way of analogy, to the case of a co-mortgagee, it may be possible to relieve him from the hardship of paying court-fee on the whole amount. If, on the other hand, the question is raised as one relating to the jurisdictions of the Court instead of a question of court-fee, the difficulty of accepting some of Ramesam J.'s observations will become apparent. Suppose the plaintiff's share in the mortgage amount was within the limits of the Court's jurisdiction but the whole amount due under the mortgage was in excess of its jurisdiction, as might well happen in this country. Ramesam, J., certainly contemplates that the decree passed in the suit may provide for the realisation of the whole of the mortgage amount by sale of the property and not merely of the plaintiff's share. What is to be regarded as the value of the suit for purposes of jurisdiction? There is an obvious distinction between the case of a co-mortgagee and that of a prior mortgagee above referred to by way of illustration a puisne mortgagee suing as plaintiff may well bring the hypotheca to saie subject to the prior mortgage, but one co-mortgagee cannot sell the hypotheca subject to the other co-mortgagee's right. Further, if it becomes necessary to sell the whole or anything in excess of a proportionate part of the hypotheca to realise even the amount due to the plaintiff co-mortgagee, it will be neither fair nor consistent with the policy of the law to allow the plaintiff to appropriate the proceeds wholly in satisfaction of his claim. Justice can be done between all the parties concerned only by providing in the decree for the distribution of the sale proceeds amongst the co-mortgagees. It accordingly seems to me more reasonable to regard the mortgage as a single cause of action at any rate for purposes of jurisdiction and in such a case under Section 8 of the Suits Valuation Act, the valuation for purposes of court-fee cannot be different. Ramesam, J., suggests that as regards the defendant co-mortgagee's share, the Court may be able to collect the court-fees later on before distributing the monies to him. With great respect, I venture to doubt if there is anything in the Court-Fees Act authorising the Court to do so. It is not within the scope of Section 11 of the Court-Fees Act. (Cf. Ramaswami Aiyar v. Rangaswami Aiyar : AIR1931Mad683 .) The learned Judge refers to the analogy of partition suits where even the defendants may claim a share on payment of court-fee. In Venkatasubbamma v. Ramanathayya : AIR1932Mad722 the same learned Judge, as a member of a bench, held that a defendant in a partition suit cannot be called upon to pay court-fee in respect of his share.
9. Reference was made by Mr. Jayarama Aiyar (the learned Counsel for the respondent) in this connection to the decision in Gopalu Pillai v. Kothandarama Aiyar (1934) 67 M.L.J. 843 : I.L.R. 57 Mad. 1082 where the learned Judges drew a distinction between a claim by one of two joint promisees and a claim by one of two co-heirs of a single promisee. With great respect I am not, as at present advised, satisfied with that distinction. It is possible, as contended by Mr. Jayarama Aiyar that the frame of the suit in the present case may be justified on the ground that the mortgage had become split up by the admitted fact that the first defendant had become interested in the mortgage right as well as in the equity of redemption. But this question was not argued at great length before us and I do not therefore deal with it further.
10. I may also add that even according to the decision of their Lordships in Sunitabala Debt v. Dhara Sundari Debi Chowdhurani (1919) 37 M.LJ. 483 : L.R. 46 IndAp 272 : I.L.R. 47 Gal. 175 (P.C.) the objections to the frame of the suit is by no means fatal and it might well be met by directing an amendment of the plaint. It is not by any means clear from the plaint that the plaintiff has framed the suit only for a share of the mortgage money. It is clear from the remission of Rs. 551 even out of the 19/24th share that he thought that he could not realise more than Rs. 5,500 out of the available hypotheca. This is another reason which has induced me to overrule the appellant's contention as one raised at a late stage. If, as was apparent, the only object of the appellants in raising this objection was to get an opportunity of having the case tried again before the lower Court, it is very doubtful whether I should have acceded to that request but for the fact that for other reasons I have decided to give the appellants such an opportunity.
11. This takes me on to the question which has been argued on the merits and which I am free to confess has given me great difficulty in making up my mind. The first issue, as I have already stated, related to the question whether the suit bond was only nominal or was supported by consideration. In an attempt to persuade us not to show any indulgence to the appellants at this stage, Mr. Jayarama Aiyar laid stress on the fact that this is a familiar plea in Indian Courts and contended that we will be encouraging a frivolous plea by allowing it to be seriously pressed so many years after the transaction. I may be embarrassing the Court in deciding the case on the merits, by referring at great length to the circumstances suggesting that the plea may not after all be frivolous. I therefore content myself with saying that the circumstances of the case do not justify the contention that the plea must necessarily be frivolous. As to the argument based upon the lapse of time, I would only point out that this is not by any means an argument against the defendants; on the other hand, they themselves rely on the circumstance that notwithstanding the fact that no payment had been made towards interest or principal, no action was taken to enforce the mortgage between 1911 and 1926. The fact that on account of the state of work in this Court this appeal has been pending from 1930 till 1936,. should not be allowed to prejudice the appellants' claim to indulgence if otherwise they are entitled to any indulgence at our hands.
12. Mr. Jayarama Aiyar next contended that by reason of the order already passed in proceedings under Order 9, Rule 13, Civil Procedure Code, the appellants were no longer entitled to raise any point in appeal justifying their request for an opportunity to adduce evidence or for a fresh trial. The facts bearing oni this contention are as follows. After some adjournments, the suit came on for hearing on the 8th August, 1928. Leaving alone certain discrepancies between the various affidavits filed in the case, the events of that date may substantially be taken; to have been the following. The contesting defendants had: engaged Mr. M.S. Sesha Aiyangar (one of the leading members of the Madura bar) and a junior as their Counsel. When the case was first called between 11 and 12 noon on the 8th August, it was represented to the Court by the junior vakil that Mr. Sesha Aiyangar had gone to the District Magistrate's Court to attend to some work there because he had been led to think that the Sessions case which had been posted for trial; before the learned Subordinate Judge would take sometime. It is not denied that there was a Sessions case posted for trial that day but it would appear that for some reason it did not take as long as was originally expected. The junior Counsel requested that the case may be taken up sometime later in the day and stated that Mr. Sesha Aiyangar would be sent for. At 12-30 P.M. the case was again called. It was represented to the Court that a man had been sent to fetch Mr. Sesha Aiyangar and that he would be going over almost immediately. The learned Judge was good enough to wait till one o'clock but as he had no other work to do that day he was unable to wait longer and he began the trial of the case. It is not denied that the first defendant was in Court at the time, and she was acting for herself and as guardian ad litem of her minor son the fourth defendant. For reasons which I certainly do not wish to be understood as at all approving of or even as prepared to condone, the junior vakil in the case was not prepared to take upon himself the duty either of cross-examining the plaintiff's witnesses or of leading evidence on behalf of his clients. The result was that the learned Judge recorded the examination-in-chief of the witnesses tendered on the plaintiff's side and immediately delivered judgment in favour of the plaintiff.
13. It is necessary to refer to one observation in paragraph 5 of his judgment because it is obviously a mistake. After observing that the defendants have not let in any evidence to show that the deed was nominally executed, he goes on to say ' They did not even take steps in time '. This is certainly an unfortunate mistake. The affidavits sworn to, not merely by the first defendant but also by the three witnesses who had attended the Court on her behalf on the 8th August, and filed in Court on the 9th August, show that these three witnesses had been summoned to give evidence on the defendants' side and that they were present in Court on the 8th till 3 P.M. when they were informed that the case had been disposed of ex parte, that the defendants' vakil could not appear and that they need not wait any longer. We are not in a position to say whether the learned Judge was informed or whether he realised that the defendants' witnesses were present in Court. In the view that the defendants had not taken any steps in time to substantiate their plea, the learned Judge might well have thought that the defendants were merely trying to obstruct the trial of the suit by putting forward frivolous pleas to substantiate which they took no steps. This would naturally have added to the impression produced on his mind by the absence of their vakil. If on the other hand he believed that the defendants and their witnesses were ready in Court it would certainly not have led him to think that the defendants were not serious about their plea.
14. After a decree had been passed in plaintiff's favour, on the 8th August, an application under Order 9, Rule 13, Civil Procedure Code, was made on the very next day to set aside the ex parte decree. Notice of that application was issued during the incumbency of the same Judge, but it came on for final orders before his successor, who took a somewhat lenient view of the situation and directed the ex parte decree to be set aside on terms. But when the matter came up on revision before this Court, Jackson, J., was of opinion that while it might be possible to hold on the facts that there was non-appearance within the meaning of Order 9, Rule 13, Civil Procedure Code, it was not possible to hold that there was sufficient cause for non appearance. He accordingly set aside the lower Court's order, with the result that the original decree stood. The present appeal has been filed as a regular appeal against the decree itself.
15. On the above facts, it has been argued by Mr. Jayarama Aiyar that the order passed by this Court on the petition under Order 9, Rule 13, Civil Procedure Code, precludes the appellants from re-agitating the same question in the appeal. Reliance was placed in support of this position on the decisions' in Badvel Chinna Asethu v. Vattipalli Kesavayya : (1920)39MLJ697 and Lakshmi Ammal v. Devadasi Nayudu (1926) 100 I.C. 553. I am prepared to assume for the purpose of this case that on general principles some finality should attach to the order passed by the Court in proceedings under Order 9, Rule 13, Civil Procedure Code. But the very reasoning of the decisions relied on by the respondent limits that finality to matters within the scope of Order 9, Rule 13. On the facts of this case, it is difficult to hold that the grounds on which the application under Order 9, Rule 13 was sought to be supported are really grounds falling under Order 9, Rule 13 at all. Jackson, J., no doubt was prepared to assume that the facts might have amounted to non-appearance but as he was deciding against the defendants on other grounds, it can hardly be regarded as a decision on that question. It seems to me to be straining the natural inference from the facts to hold that the case was really one under Order 9, Rule 13. The facts that a party wrongly put in an application under Order 9, Rule 13, Civil Procedure Code, will not bring in any rule of finality merely because the Court refused to regard the case as a fit one for setting aside the ex parte decree.
16. It may also be pointed out that even taking the events to amount to non-appearance and that too, for no justifiable cause, we are not now called upon to set aside the ex parte decree or re-consider these very grounds. As I have stated already, the contesting defendants were a Muhammadan lady and her minor son. The lady was certainly not guilty of any default; she had engaged vakils, had summoned witnesses and she and her witnesses were present in Court. Her senior vakil was absent and her junior vakil was either absent according to his affidavit or was not prepared to go on with the case according to the other affidavits. A request was made that the case might be taken up after the senior vakil arrived but in view of the state of work before the Court that day the learned Judge was not inclined to grant the request to the full extent required. In this appeal, we confine ourselves to the question whether it would not have been better, in the interests of justice, having regard especially to the fact that the contesting defendants were a Muhammadan lady and her minor son, for the Court to have adjourned the case so as to give the defendants an opportunity to cross-examine the plaintiff's witnesses and to lead evidence on their own behalf.
17. I once again wish to make my position clear, that I am not to be understood as justifying the course adopted by the junior vakil in the circumstances. I regret to say from my own experience that members of the bar too often think that they were serving their clients' interests by running away from the case when the senior is not available. Courts have frequently re-iterated their unwillingness to interfere in such cases under Order 9, Rule 13, Civil Procedure Code. It seems to me that conduct of this kind is certainly not calculated to help the clients concerned. And from the point of view of the vakil concerned, one can only express the strongest disapproval of such a course. But I am unable to agree with Mr. Jayarama Aiyar that in such a case the Court is powerless to interfere to help the client in the interests of justice and must leave the client to his or her remedy against the vakil. The remedy against the vakil is to say the least problematical and it may also be that the fruits of any decree that the client may obtain on the iground of negligence will not by any means compensate the client for the loss of his case. I am not at all sure that it would inevitably follow from the interference of the Court in one of. such cases that it will either become a precedent or will justify interference of the Court in all cases where the vakil has neglected the conduct of the client's case. The Court must always be satisfied that there has been no kind of default on the client's part and that the circumstances were such as to leave the client helpless to proceed further with the conduct of the case. The plea of prejudice to the other side has no doubt to be considered, but there are other ways in which the other side can be compensated for any possible prejudice that may be caused by the Court's interference.
18. I should like to indicate another point of view in this connection. Suppose, for instance, that at the time the case was taken up on the 8th August, the client who found that the senior vakil was absent and the junior was unable or unwilling to go on with the case, represented to the Court that she had been badly let down by her legal advisers and that she must have time to engage another vakil to take charge of the case. Mr. Jayarama Aiyar was not prepared to go the length of saying that a request of that kind was one which the Court should reasonably refuse. But he said that that is not the case here, because the kind of request was not made by the first defendant. I cannot altogether ignore what I know of the mentality of the clients in this country. They are not as ready to find fault with their legal advisers as they may be entitled in law to do. In this very case, if she had made +hat request to the Court she would have to find means to engage another vakil, and if by the next morning the original senior vakil was available it would have been an unnecessary strain on her purse to insist upon another vakil appearing.
19. These reasons stand in the way of my laying it down as any rule of law that in a case of this kind the Court is bound to visit upon the client the consequences of the omission of the vakil or vakils in the case to do their duty. If I had any reason to think that the defendants had not done their duty to facilitate the conduct of the case, I should certainly have little sympathy with the request now made on their behalf. But on the facts and for the reasons already stated, I am unable to uphold Mr. Jayarama Aiyar's objection that we are precluded from acceding to the request made on behalf of the appellants.
20. In this connection I may refer to the judgment of the PatnaHigh Court in Mullick v. Ganga Gope : AIR1925Pat534 where they distinguish the case reported in Badvel Chinna Asethu v. Vattipalli Kesavayya : (1920)39MLJ697 and point out that the orders passed on an application under Order 9, Rule 13, Civil Procedure Code, do not stand in the way of the Court considering the merits of the question whether in the circumstances of the case an adjournment should have been granted or not.
21. Mr. Jayarama Aiyar finally contended that if we show any indulgence to the appellants we must at least put them on terms. This request is certainly reasonable. Two sets of terms were suggested; one a limitation of the class of witnesses to be examined and the other a provision as to the costs so far incurred by the plaintiff. We think it proper to leave the latter question to be decided at a later stage, when the evidence and findings that we propose to call for will be before the Court. We will then be in a better position to exercise our discretion in this matter. As regards the witnesses to be called by the contesting defendants to give evidence, I think there is some force in Mr. Jayarama Aiyar's objection that we should not encourage the possibility of witnesses now being placed before the Court for the first time who had never been thought of before. We would therefore in the first instance limit the contesting defendants to the examination of the witnesses summoned on their side in connection with the former hearing and to the witnesses whose names have been specified in the list filed on their behalf even though they had not been summoned. It has however been represented to us that in view of the time that has elapsed, some of the witnesses then thought of might not be available. All that we can do at this stage is to leave it to the lower Court to consider whether any of the witnesses now sought to be produced on the appellants' side for the first time have really become necessary by reason of causes of the kind above indicated. I do not wish to fetter the discretion of the lower Court by any further observations. If it is satisfied that the appellants had bona fide reasons for not calling them or citing them on the previous occasion it will be at liberty to permit the appellants to examine them now. The appellants will of course be given an opportunity of cross-examining the plaintiff's witnesses who were examined on the previous occasion as well as any other witnesses that the plaintiff might choose to examine. The plaintiff will be at liberty to examine once again the witnesses examined on the previous occasion and any other witnesses whom he may consider necessary.
22. In the circumstances of this case I do not think it desirable to set aside the decree and send the case as a whole back to the lower Court. The case had been pending so long that it seems better to direct the lower Court to record the evidence and admit any documentary evidence that the parties might tender in the light of the observations made above and to submit a revised finding on the first issue. The finding will be submitted before the 31st October, 1936. Ten days for objections (after the return of the finding shall have been posted up in the notice board of the High Court).
23. I agree with the order proposed by my learned brother. I desire to limit the reasons on which I agree to one. It must be remembered that we are hearing an appeal against a decree in the suit in question which was passed on 8th August, 1928, a decree which had interesting subsequent history. But it is that decree which is before us. ' Now my learned brother has narrated the events that happened in Court on the day that this ex parte decree was passed and it is unnecessary for me to repeat them. But it is perfectly clear that owing to the very peculiar behaviour of the pleaders engaged by the contesting defendants to this case the learned Judge's mind might have inadvertently been full, at least of doubt, if not of suspicion with regard to the bona fides of the defendants themselves.
24. In paragraph 5 of his judgment the learned Judge says as follows:
Defendants have not let in any evidence to show that the deed was nominally executed. They did not even take steps in time.
25. According to the B diary it is stated under date 8th August, 1928:
Defendants have no evidence. The maintenance of this B diary may be of assistance, but the statement in it is not final.
26. Now in this case it is clear that on the application to set aside the ex parte decree the petitioner stated quite clearly in her own affidavit and it is also stated in the affidavits of three other persons that there were three witnesses, that they were summoned, and that they did attend Court at 11 A.M. on the day in question. This fact curiously enough is not contradicted in the counter-affidavit. It is therefore quite clear that the learned Judge was under a great misapprehension when he stated that no steps had been taken by the contesting defendants in the case. I think that a Judge who had to determine on that day whether to proceed or not with the case must have had his judgment completely swayed by the circumstance that no evidence had been brought to the Court to prove an issue which the defendants would have to prove. It would be inevitable in my view that the result would follow which did follow, namely, that he passed an ex parte decree, no doubt taking the view that this was merely a time-serving case without any substance whatever in it. Immediately however it appears, as we now know, that there was a genuine attempt to defend this matter. I think the decree itself becomes vulnerable and so vulnerable that it is open to us to say that we should pass an order enabling the appellants in this case to have the limited hearing which we have indicated. On these grounds I agree as I said with my learned brother's proposed order.
27. With regard to the behaviour of the pleaders concerned I only wish to say this that if it were not for the difficulty relating to the supposed absence of the defendants' witnesses I should with regret have been unable to agree that the conduct of the pleaders alone was such as to enable us to pass any order in favour of the appellants. I think that our position is very similar to that of a Judge sitting in revision considering an application under Order 9, Rule 13, Civil Procedure Code. I would refer to the observations in Abdul Aziz v. The Punjab National Bank, Limited I.L.R. (1928) Lah. 570 where it is stated that the absence of a pleader is not in any way final one way or the other in considering whether a decree should or should not be set aside. It is stated there, that there should be a judicial enquiry in each case into the particular facts relating to the absence of the particular pleader on the particular occasion. I think that that is a very sound test because it does not lay down any general rule in this matter. I think that this test must be applied in this case.
28. It is not possible to say that the absence of the pleaders was excusable and much as I regret it I think it is inevitable that the client in these circumstances would have had to suffer. It is the result of what I suppose is a lack of judgment in choosing legal advisers. As however I am agreeing with the order proposed by my learned brother it is unnecessary to say more on this particular topic.
29. I have only to add that I agree with the observations which my learned brother has made relating to the frame of the suit and the opinion which he has indicated regarding the decisions in Sunitabala Debi v. Dhara Sundari Debt Chowdhurani (1919) 37 M.L.J. 483 : L.R. 46 IndAp 272 : I.L.R. 47 Cal. 175 (P.C) and also the decision of this High Court in Gopalu Pillat v. Kothandarama Aiyar (1934) 67 M.L.J. 843 : I.L.R. 57 Mad. 1082.
30. [In pursuance of the above order calling for a revised finding, the Subordinate Judge of Madura submitted a revised Ending and this appeal coming on for final hearing on Friday the 30th day of April, 1937, after such revised findings the Court delivered the following
31. Varadachariar, J.--Some of the facts of this cage have been stated in our order dated the 21st!July, 1936, whereby we set aside the decree which had been passed by the trial Court in this suit in the first instance without an opportunity for the defendants to prove their case. We then asked the lower Court to submit a revised finding on the first issue after a full trial; the lower Court has now submitted a finding in favour of the defendants on that issue.
32. It is sufficient to say that the appeal arises out of a suit on a mortgage bond (Ex. A) executed by one Peer Muhammad in favour of his son-in-law Alia Pichai, on 18th September, 1911. This action has been instituted on the last day of the period of limitation of 12 years calculated from the expiry of the three years' term fixed in the mortgage bond. Both the mortgagor and the mortgagee are dead and admittedly there have been disputes and misunderstandings between their heirs. The plaintiff purports to sue as assignee of the mortgage claim for consideration paid by him in cash to one set of heirs of the mortgagee. The mortgagor's heirs pleaded that the mortgage bond was a nominal transaction, that no money was ever received under it and that the plaintiff was not an assignee for value at all. On these pleas, the first issue was raised in the following terms:
Whether the mortgage bond sued on is true and supported by consideration.
33. The finding now is to the effect that the document is no doubt true in the sense that it was executed by Peer Muhammad Rowther but it was not supported by any consideration.
34. This finding has been attacked on behalf of the appellant, as one arrived at without giving sufficient weight to the rule that the onus in a. case of this kind lies on the mortgagor's heirs to prove absence of consideration. It has also been contended that the observations of the Court below as to the bona fides of the plaintiff in taking the assignment and as to the truth or otherwise of his story as to payment of consideration for the assignment are irrelevant, particularly in view of the fact that we had not called upon the lower Court to submit a finding on the second issue. It was finally urged that the contesting defendants on whom the onus lies have not adduced satisfactory evidence to prove absence of consideration.
35. We may state at the outset that in a case of this kind the conclusion must largely rest upon probabilities and not upon direct evidence and it is much more so where the principal parties connected with the transaction have died. Besides the relationship of father-in-law and son-in-law between the mortgagor and the mortgagee it is also clear from the evidence that the alleged mortgagee was a man of very small means, who came to live with bis father-in-law after he had married the latter's daughter and was then started on business in a very small way. It is difficult to believe that in a very short time thereafter he could have found a sum of Rs. 3,000 to lend to his father-in-law. On the other hand, there is a certain amount of evidence which the lower Court has accepted that the father-in-law was in some financial embarrassment at that time, though he was also possessed of property, and it is not unlikely that he resorted to a benami transaction of this kind with a view to gain time to settle affairs with his creditors. The direct evidence on the plaintiff's side in support of payment of consideration is very poor and was rightly discredited by the learned Judge. In our opinion, a very material circumstance tending against the reality of the mortgage is that within 8 or 9 months after its date, the father-in-law brought into existence a nominal document (Ex. 9) purporting to sell a good portion of the hypothecated property to D.W. 4. D.W. 4 belongs to a different community and has no interest in either of the parties. He has sworn that in connection with Ex. 9 both the father-in-law and the son-in-law came to him and stated that they found it expedient to put the properties covered by Ex. 9 for the time being benami in the name of D.W. 4 and it was also stated to him in that connection that the mortgage under Ex. A the discharge of which was stated to be the consideration for the sale under Ex. 9, was also a benami document. The nominal character of Ex. 9 has not been seriously questioned. Nothing whatever has been elicited in the cross-examination of D.W. 4 to suggest that the evidence of this witness ought not to be believed. The fact that during all the time that the father-in-law and the son-in-law lived and for many years after their death, not a pie has been demanded or paid towards the mortgage debt, even though one of the items covered by the mortgage (namely, a debt due to the mortgagor under Ex. 11) was realised by the mortgagor also goes to support the story that Ex. A did not represent a real loan. In these circumstances we see no reason to differ from the finding of the lower Court that Ex. A is not supported by consideration. The appeal must therefore be allowed and the suit dismissed with costs of the appellants here and in the lower Court, including the costs of the finding enquiry.