1. The facts of this case are a little complicated, but when they are understood, we think that no real difficulty will be experienced in disposing of the points which have been argued before us. Bhairab Chandra Haldar and Shib Chandra Haldar were uterine brothers. Bhairab Chandra died first, leaving a widow Lukhimoni, who died in Aughran 1271 (29th November 1864). Shib Chandra died after the death of Bhairab Chandra and before the death of Lukhimoni, and was succeeded by a son Doorga Coomar Haldar. This son subsequently died in Pous 1248 (12th January 1842), leaving him surviving two widows, Komal Padma Dabi and Prosonnomoyi. Doorga Coomar gave his widows a power to adopt a son; and in execution of this power Shukmoy was adopted by the younger widow, Prosonnomoyi. On the 16th September 1873, Sukhmoy Haldar borrowed Rs. 3,000 from one Radha Mohun Mondol, and as security for the payment of this amount, he mortgaged an eight-anna share of the property specified in schedule A annexed to the plaint. On the 3rd June 1874, a portion of this property (including half a cotta of land which forms the subject of the present suit) was sold in execution of a money-decree obtained by one Umesh Chandra Banerji against Sukhmoy Haldar and his adoptive mother Prosonnomoyi, and was purchased by Umesh Chandra Banerji, the decree-holder himself. The effect of this purchase was to make Umesh Chandra Banerji the assignee of the mortgagor. Umesh Chandra Banerji has since died, and defendant No. 3, who is the appellant before us, is his minor son and heir, and defends this suit by his mother and guardian Sreemati Nistarinee Dabi. Subsequent to this purchase by Umesh Chandra Banerji, Radha Mohun Mondol brought a suit upon his mortgage-bond in order to enforce his lien against the mortgaged property. The parties to that suit were Radha Mohun Mondol, the mortgagee, as plaintiff, and Sukhmoy Haldar, the mortgagor, and Umesh Chandra Banerji, the assignee of the mortgagor, as defendants. Umesh Chandra Banerji died while the suit was pending; and no stops were taken to make his heirs or representatives parties to the suit in his place.
2. Now the first point which has been pressed upon us is, that the mortgage-suit is a bar to the present suit against the appellant, who is the heir and representative of Umesh Chandra Banerji: inasmuch as Umesh Chandra Banerji was a party to the mortgage-suit, it is said that the claim under the mortgage has become res judicata; and that the mortgagee having omitted to make Umesh's representative a party to the suit so as to bind him by the decree is not now entitled to bring a second suit against such representative. We think that if the former suit on the mortgage-bond had been instituted after the present Code of Civil Procedure had come into operation, this contention would be sound, regard being had to the express provision of Section 3711; but no such express provision was contained in the old Code, Act VIII of 1859; in other words, that Code did not expressly provide that when a suit abates, as regards the defendant or one of the defendants, no fresh suit shall be brought on the same cause of action. In the absence of these provisions, we cannot say that, under the former Code, the abatement of a suit had the effect which is now given to it by the express provision of Section 371 of the present Code. Without such express provision the present suit can be barred only if the subject-matter of it is res judicata. In order to make such matter res judicata, it must have been decided or determined in the former suit between the parties to the present suit or parties under whom they claim. It is not possible to say that this matter was decided in such former suit between the mortgagee and Umesh, who was dead, or the representative and heirs of Umesh Chandra Banerji, who were not parties to such suit, at the time when judgment was delivered and the decree made. We think, therefore, that that former suit is not a bar to the present suit.
3. Radha Mohun Mondol having obtained a decree on his mortgage-bond as against the mortgagor only, proceeded to execute that decree; and on the 6th November 1876 the mortgaged property was sold in execution. It appears that the rest of the property, other than the half cotta of land with which the present suit is concerned, was purchased by the mortgagee, decree-holder, himself; and the plaintiff in the present case purchased half a cotta out of the nine bighas, which were mortgaged under the bond. The plaintiff having endeavoured to take possession of the half cotta so purchased by him, was resisted by the appellant, who claimed a title to the property under the auction-purchase of the 3rd June 1874 to which reference has already been made. Thereupon the plaintiff instituted the present suit; and, after setting forth the facts in his plaint, he asked, amongst other things, that he should be declared entitled to possession of this half cotta of land, and further that the Court would give him any relief to which he might be found to be entitled.
4. Several questions were raised and decided before the Munsif, and one of those questions was, that Sukhmoy Haldar had, at the time when he executed this mortgage-deed, no interest in the property. The Munsif has dealt with this point in the following manner: He considered that Sukhmoy Haldar was entitled to the eight-annas share which originally belonged to Bhairab Chandra Haldar, and which upon Bhairab Chandra's death descended to his widow Lukhimoni Debi; that, after her death in Aughran 1271 (November 1864), Sukhmoy Haldar, as her heir under Hindu law, was entitled to this moiety of the property. The mortgage-deed, as a matter of fact, specified that what was mortgaged under its provisions was the property which Sukhmoy had inherited from his adoptive father Doorga Coomar, and the Munsif was of opinion that, under the neum puttro as regards this moiety,--that is, the moiety which originally belonged to Shib Chandra and on his death belonged to Doorga Coomar,--Sukhmoy had no title thereto until the death of Prosonnomoyi (and admittedly Prosonnomoyi was alive at the time of the execution of the mortgage-deed); but inasmuch as Sukhmoy had a good title to the other moiety, that is the moiety which originally belonged to Bhairab Chandra, it appeared to the Munsif immaterial whether Sukhmoy mortgaged the moiety which he inherited from Lukhimoni, or the moiety which he would have inherited with absolute title on the death of Prosonnomoyi. It appears to us, that this was not a satisfactory way of dealing with the question. What Sukhmoy mortgaged was the moiety which he had inherited from his father Doorga Coomar; and if at the time of the execution of the mortgage-deed he had, as a matter of fact, no interest whatever in this moiety which he could alienate or encumber, there was nothing which could have passed to the mortgagee under the bond. But it has been well contended upon the authority of the case of Mussamut Bhagbutti Daee v. Chowdhry Bholanath Thakoor L.R. 2 I.A. 256 that the effect of the neum puttro was to give to the widow a life-interest in a moiety, and that Sukhmoy Haldar, being the remainder man, was entitled to deal with the property subject to the life-interest of the widow. We think that this contention is correct, and it being admitted that Prosonnomoyi is now dead, we think that the appellant can derive no benefit from the objection taken before us on this point.
5. The other points which were raised in the lower Courts have not been seriously contested before us, and they are all concerned with questions of fact into which we cannot enter on second appeal.
6. The next question raised upon the appeal is concerned with the form of the relief granted by the decree of the lower Court. The decree of the Munsif gives to the plaintiff Rs. 835, which it directs to be realized from the disputed property,--that is, the half cotta,--together with costs and interest at six per cent., and makes a declaration of a lien in respect of this sum upon the disputed property. Now it is first contended that, upon the plaint as originally framed, this is a relief to which the plaintiff is not entitled. It appears to us, that this contention ought not to succeed. The heirs of Umesh Chandra Banerji, the assignee of the mortgagor, are not bound by the decree passed in the original mortgage suit, and the present suit may fairly be regarded as in the nature of a supplementary suit brought for the purpose of binding the assignee of the mortgagor. In this view we think that it was properly directed that such portion of the mortgage-debt as might be fairly cast upon this half cotta of land should be declared to be a lien thereupon and recoverable by the sale thereof; and this in effect is what the decree of the Munsif has done. The property is in the possession of the assignee of the mortgagor who is entitled to redeem on paying off a fair proportion of the mortgage-debt; and this the decree of the Munsif gives the assignee an opportunity of doing. Then it is further contended that, the sum of Rs. 835 with costs and interest, which is by the decree of the Munsif made recoverable from the half cotta of land, is not a fair apportionment of the mortgage lien upon this which is but a small portion of the whole property,--that is, nine bighas which formed the subject of the original mortgage. This of course is a matter which cannot be dealt with in the absence of the evidence. It has been contended before us, that the plaintiff's suit ought to be dismissed, because the other persons have not been made parties, and because there is no evidence upon the record upon which a fair apportionment can be made: but it appears to us that, having regard to the somewhat complicated nature of the matters involved, this would not be a reasonable course. As already pointed out, the plaint, as originally filed, contained a prayer for general relief; and we think that the relief which has been given by the Munsif's decree comes well within this prayer for general relief. But we think that when, at a late stage of the case, the Munsif decided to give this particular form of relief, he ought to have raised and tried an issue, which would have allowed the parties an opportunity of showing what was a fair apportionment of the mortgage lien upon the half cotta of land. It has been said in the course of the argument that the whole of the mortgage-debt was, or could have been, realized from the rest of the property; and that, under any circumstances, no more than a very small fractional share (13/16) of the debt ought to be chargeable upon this half cotta. That is a matter upon which, in the absence of evidence, we offer no opinion. We think that the reasonable course will be to remand the case to the Court of First Instance in order that the Munsif may raise and try an issue as to what sum is a reasonable apportionment of the mortgage-debt upon the half cotta of land. The appellant has expressed himself willing to abide by the ultimate result. If it should turn out that a larger amount than Rs. 835 ought fairly to be apportioned upon the half cotta of land, he will have to pay such larger sum; but if a lesser sum, he will be entitled to the benefit. In deciding this question, it may be well to observe that the price actually realized by the sale of the mortgaged property under the mortgage-decree, though good prima facie evidence of the respective values of the half cotta and the rest of the land is not conclusive. It may be that this half cotta is proportionally more valuable than the rest of the property. Then as regards the apportionment the time at which the respective values of the two portions of the property should be taken is the time of instituting the present case, in which the plaintiff seeks to obtain what is in effect a supplementary decree; and it may well be that the price realized at the sale under the former mortgage-decree for the half cotta of land is in consequence of the lapse of time or for other good reason not a fair apportionment of the total amount due under the mortgage. With these directions, the suit will be remanded to the Court of First Instance; and the costs of this Court will abide the result.
1[Section 371: When a suit abates or is dismissed under this Chapter, no fresh suit shall be brought on the same cause of action.
Effect of abatement on parties' rights.
But the person claiming to be the legal representative of the deceased bankrupt or insolvent plaintiff, may apply for an order to set aside the order for abatement or dismissal; and if it be proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.]
Application to set aside abatement or dismissal.