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Ray Satindra Nath Choudhury Vs. Ray Jatindra Nath Choudhury and ors. - Court Judgment

LegalCrystal Citation
Subject Property; Contract
CourtKolkata
Decided On
Reported inAIR1927Cal425,101Ind.Cas.530
AppellantRay Satindra Nath Choudhury
RespondentRay Jatindra Nath Choudhury and ors.
Cases ReferredMorley v. Bird
Excerpt:
- .....of partition had affirmed such right, that the plaintiff had realised the full amounts due from money-debtors of the joint estate, that the suit was not maintainable in its present form and that the plaintiff could not recover anything from the defendant no. 2 until there was an adjustment of accounts. there was a prayer for set-off of a sum of rs. 36,500 representing the half share of certain sums alleged to have been taken by the plaintiff from the joint funds, but the defendant no. 2 having failed to pay court-fee on the amount claimed by way of set-off; the prayer was rejected.5. the court below decreed the suit, and the defendant no. 2 has appealed to this court.6. the first question for consideration is whether the suit by the plaintiff alone for recovery of his one-half share.....
Judgment:

1. These two appeals arise out of two suits upon mortgages. It appears that one Khagendra mortgaged the eastern part of the house (the property mortgaged) to the plaintiff Jatindra and his brother Satindra for ERs. 20,000 on the 7th January 1918. On the 30th September 1918 Surendra mortgaged the western part to both Jatindra and Satindra for Rs. 20,000.

2. On the 18th March 1921 there was a deed of partition between the two brothers and their mother. The material portion so far as the present case is concerned runs as follows:

Whenever any money, on account of ijmali (joint) money lending business or decree be realised, the same being at the same time divided in two equal parts, the second party and third party (i.e., the two brothers) will get it in equal shares.

3. On the 27th April 1922, both Surendra and Khagendra sold the equity of redemption in the house to Satindra alone for Rs. 94,000 out of which Rs. 54,000 was due on the mortgages, the balance Rs. 40,000 being paid in cash. On the 13th May 1922 Satindra gave notice to Jatindra through a solicitor that he holds the sum of Rs. 54,000 on the joint account of himself and Jatindra and that the same would be taken into account at the time of the adjustment of accounts of the joint estate. Jatindra did not give any reply to the notice, but Jatindra instituted these two suits on the 2nd June 1922 one against the mortgagor for recovery of Rs. 13,305, being the principal and interest, and the other against the mortgagor Khagendra for recovery of Rs. 13,962-8-0 (the principal and interest) due to him in his moiety Share, Satindra being made the Defendant No. 2 (pro forma) in each of the two suits.

4. The defence of the mortgagor defendant in each suit inter alia was that the whole of the mortgage debt had been paid off and there was full discharge of the mortgage debt. The Defendant No. 2 also leaded that the whole mortgage bond had been fully paid off, that he was competent to give a valid discharge in respect of the entire mortgage debt, that the deed of partition had affirmed such right, that the plaintiff had realised the full amounts due from money-debtors of the joint estate, that the suit was not maintainable in its present form and that the plaintiff could not recover anything from the Defendant No. 2 until there was an adjustment of accounts. There was a prayer for set-off of a sum of Rs. 36,500 representing the half share of certain sums alleged to have been taken by the plaintiff from the joint funds, but the Defendant No. 2 having failed to pay Court-fee on the amount claimed by way of set-off; the prayer was rejected.

5. The Court below decreed the suit, and the Defendant No. 2 has appealed to this Court.

6. The first question for consideration is whether the suit by the plaintiff alone for recovery of his one-half share of the mortgage debt is maintainable. Reliance is placed upon the case of Suniti Bala Debi v. Dhara Sundari [1920] 7 Cal. 175, where it was held that upon a mortgage to two mortgagees to secure two separate sums the whole mortgaged property being conveyed to the mortgagees as tenants in common and there being no covenant to repay to each separately, if one mortgagee desires re-payment, his co-mortgagee not consenting to proceedings, his proper course is to sue for a mortgage decree in respect of the whole sum secured, joining his co-mortgagee as a defendant. We do not think that the above case has any bearing upon the present one. No doubt the mortgage debt is one and indivisible and ordinarily one of the mortgagees cannot enforce the mortgage for his share of the debt. But, as stated above, the Defendant No. 2 before the suit had informed the plaintiff through his solicitor that the entire mortgage debt had been realised by him from the mortgagors (whether that was a valid discharge in respect of the plaintiff's share or not will be considered presently), but the receipt of the debt certainly operated as a discharge of the share of the Defendant No. 2 and in the face of that admission of the Defendant No. 2, the plaintiff could not sue for the entire mortgage debt. The plaintiff in his plaint stated that

If according to the decision of the Court it is considered proper that Court-fees should be paid on the whole amount due to the plaintiff and; the Defendant No. 2 on the basis of the mortgage deed, then the plaintiff reserves prayer for amending the plaint and paying the deficit Court-fees hereafter.

7. The Defendant No. 2 did not raise any objection on the ground that the suit could not be maintained for one-half of the mortgage debt nor wag any issue on that specific point raised, In these circumstances we do not think that the contention of the appellant in this Court, that the suit cannot be maintained for the plaintiff's share of the debt has any force.

8. We may in this connexion refer to the case of Jauhari Singh v. Ganga Sahai [1919] 41 All. 631. In that case certain property was mortgaged by K to B and J. Then other property was mortgaged by G (K's brother) also to B and J. Subsequently K and G made a usufructuary mortgage of both properties in favour of B alone ostensibly in lieu of the former mortgages and B purported to give the mortgagors, a discharge of those mortgages. The learned Judges observed that B, could no longer put forward any claim against the mortgagors and so far as his interests were concerned there had been a severance of interests of the mortgagees and this had been effected with the consent of the mortgagors. They held that although the mortgagors consented to obtain a full discharge from B, the legal effect of that discharge was that it operated in respect of ' B's own share only, so that in law the acts of the I mortgagors and B amounted to a severance with the consent of the mortgagors of the interest of the mortgagees, land that in these circumstances, it was competent to J to sue the mortgagors for the recovery of his share in the mortgage debts in respect of the two earlier mortgages.

9. The next and the more important question is whether a payment to one of several mortgagees operate as a valid discharge of the whole debt. Reliance is placed on behalf of the appellant upon Section 38 of the Contract Act, Wallace v. Kelsal [1919] 41 All. 631 and certain decisions of the Indian Courts.

10. Section 38 of the Contract Act provides that an offer to one of several joint promises has the same legal consequences as an offer to all of them. That, however we think, deals with the questions of an unaccepted offer, and merely states that the same legal consequences will ensue on an offer made to one of several joint promises as an offer to all of them. We agree with the observations made by. White, C.J., in his dissentient judgment in the Full Bench case of Annapuranamma v. Akkaya [1913] 36 Mad. 544:

It (Section 38) provides in effect that all the joint promises get the benefit of the legal consequences, whatever those consequences may be, of an offer, or a tender to one of them. The section does not deal with the legal consequences of an accepted tender, or of an accepted offer of performance, but with the legal consequences where a tender or offer has been made and the tender or offer has not been accepted. No doubt the last paragraph of the section is general and is not restricted to an offer which has not been accepted, but apparently the legislature were not contemplating the legal consequences of an offer which had been accepted but the legal consequences of an offer which has been refused. I do not think we can infer from this enactment that the legislature intended to lay down by implication that the acceptance of payment by one of several promises operated as a discharge of the claims of the others.

11. The offer of a money debt does not operate to discharge the debt. Section 45 of the Act which deals with the right of joint promises to performance lays down that the right to claim performance of a promise by a person to two or more persons jointly rests, as between him and them, with them during their joint lives.

12. In Wallace v. Kelsall [1840] 7 M. &. W. 264 an action was brought by three plaintiffs for a joint demand; the defendant pleaded an accord and satisfaction with one of the plaintiffs by a part payment in cash and a set-off of a debt due from that one to, the defendant, and it was held that the: plea was good. In the case of Steeds v. Steeds [1889] 22 Q.B.D. 537, however, to an action by two obliges of a common money bond the defendant pleaded accord and satisfaction by delivery of stock and goods to one of the plaintiffs. Wills, J., observed (page 541):

The reason why the defence is a good one at law is that the two creditors are, treated as having a Joint interest in the debt, with its incident of survivorship, and the satisfaction to one of the parties of a joint demand due to himself and others puts an end to the joint demand, and he cannot after wards, by joining the other parties with him as plaintiffs, recover the debt; nor can a right of action be supposed to exist which, if it existed, night survive to the very person who hid already received full value; Wallace v. Kelsall [1919] 41 All. 631.

In equity, however, it would appear as if the general rule with regard to money lent by two persons to a third was that they will prima facie be regarded as tenants in common, and not as joint tenants, both of the debt and of any security held for it; Petti v. Styward Eq. Ca. Abr. 290m Rtgden v. Vallier 2 Ves. Son. 258, cited in the notes to Lake v. Craddock [1732] 1 Whit. & Tudor 5th Ed. 208. 'Though to take back has own,' Morley v. Bird [1978] 3 Ves. 631. Where a mortgage debt has been paid to one of the mortgagees accordingly it was held that the land was not discharged and that the concurrence of the other mortgagees was necessary to make a good title; Motson v. Dennis [1864] 10 Jur. (N.S.) 461. This is on the ground that the debt is held by the two in common and not jointly, and the principles see us to us equally applicable whether the debt is secured by a mortgage or is merely the subject of a personal contract. The principal right of a mortgagee is to the money, the estate in the land is only an accessory to that right. It is obvious, however, that this proposition cannot be put higher than a presumption capable of being rebutted.

13. In Barber Maran v. Ramana Goundan [1897] 20 Mad. 461 the sum duo upon a mortgage was paid to one of the two mortgagees and he gave acquittance without the knowledge of the other mortgagee who brought a suit upon the mortgage. It appeared that there was no fraud on the part of the mortgagors and that the mortgagee who received payment was the agent of the plaintiff on that behalf The learned Judge hold with reference to the provisions of section 38 of the Contract Act, which wore 'consistent with the common law casa of Wallace v. Kelsall [1919] 41 All. 631, that the mortgage has been discharged and that the plaintiff was not entitled to sue. The learned Judges did not follow Steeds v. Steeds [1899] 22 Q.B.D. 537, where it was held that the statement of defence (payment to one of the creditors satisfied the debt) was good only as regards the plaintiff who had been satisfied and as regards his share of the debt. But the authority of Wallace v. Kelsall [1919] 41 All. 631 has been considerably shaken by the latter decision in Powell v. Brodhurst [1901] 2 Ch. 160. In that case, it was held that where mortgagees have advanced money on a joint-account, payment to one of them during the other's lifetime, though a good discharge of the debt at law, only discharges the security to the extent of the payee's beneficial interest (if any), even though the payee ultimately becomes the survivor in the joint account.

14. So far as Indian Courts are concerned we have been referred to Barber Maran v. Ramana Goundan [1897] 20 Mad. 461, where a payment to a joint mortgagee was held to operate as a discharge of the entire mortgage. The correctness of the decision, however, was doubted in several cases in that Court see Ahinsa Bibi v. Abdul Kadar Sahed [1901] 25 Mad. 26, Veeraswamy v. Ibramsa Rowther (1909) 19 M.L.J. 221, Ramaswamy v. Murniyan [1950] 20 M.L.J. 709 and Sheik Ibrahim v. Rama Aiyar [1911] 35 Mad. 685. But in the case of Annapurnamma v. Akkaya [1913] 36 Mad. 544, it was held by the Full Bench of that Court, Sankaran Nair and Sadasiva Ayyar, JJ. (White, C.J., dissenting) that one of several payees of a negotiable instrument can give a valid discharge of the entire debt without the concurrence of the other payees. White, C.J., in his dissentient judgment after dealing with Section of the Contract Act (see passage quoted above) observed

If we are unable to find an answer to the question within the four corners of the Contract Act, we have a look to the general law, and to see, whether the rule of law as laid down in Wallace, v. Kelsall [1919] 41 All. 631 applies or whether the rule or rather the presumption of equity on which Steeds v. Steeds [1889] 22 Q.B.D. 537 was decided is to prevail. I think the equitable presumption applies, and I do not think this presumption is negatived by the provisions of the Contract Act.

15. The Allahabad High Court in Bhup Singh v. Zainul Abdin [1886] 9 All. 205 took a view similar to that taken in Barber Marin v. Ramana [1897] 20 Mad. 461. The learned Judges observed:

According to the terms of the instrument of the 3rd May 1872, it is clear that the rights of the two obliges were joint and indivisible, and it cannot be denied that, in the absence of fraud had the obliges or either of then, paid the whole debt in cash to either of the obliges, such payment would have satisfied the bond, and could have bean successfully pleaded in answer to any suit brought upon it.

16. In a later case in that Court, Jauhari Singh v. Ganga Sahai [1919] 41 All. 631 refered to above, however, the Court held that the legal effect of a discharge by one of the mortgagees was that it operated only in respect of the share of the mortgagee who gave it. So far as this Court is concerned, it has never followed the principle enunciated in Barber Maran v. Ranana [1897] 20 Mad. 461. In Harihar Pershad v. Bholi Pershad [1907] 6 C.L.J. 383 (a case of tort), it was pointed out that when a claim is on a money bond to two or more obliges, tin presumption at equity is that the obliges are tenants in common, and not joint tenants of the debt, with the consequence that the discharge by one oblige cannot be set up as a defence as against the other oblige suing for his share of the debt. In the case of H(sic)ssainara Begam v. Rahimannessa Begam [1910] 38 Cal. 342 the learned Judge observed that

payment to one of two joint mortgagees does not necessarily operate as a discharge of the debt in so fir as the other mortgagee is concerned. Equity presumes that several persons together making an advance upon the security of a mortgage have separate interests in the, money, and accordingly withholds relief from, the mortgagor when in disregard of the terms of the proviso for redemption he has made a payment to one mortgagee and not to both Matson v. Dennis [1864] 10 Jur. (N.S.) 461. Vickers v. Cowell [1839] 1 Beav. 529, Smith v Sibthorpe [1887] 34 Ch. D. 732 and Powell v. Brodhurst [1901] 2 Ch. 160 which must be taken, to have considerably shaken the authority of Wallace v. Kelsall [1919] 41 All. 631. In the case before us we must apply the doctrine stated by Wills J., in Steeds v. Steeds [1889] 22 Q.B.D. 537 citing from Lord Alvantey, M.R., in Morlsy v. Bird [1798] 3 Ves. 331, that although the mortgagees take a joint security each means to lend his own money and to take back his own. There is nothing to indicate that the intention of the parties was that each of the persons, in whose favour the mortgage obligation was created was a creditor for the whole. Consequently, it cannot be presumed that the payment to one would liberate the debtor against all the creditors; on the other hand the presumption is that each was a creditor for his own share and could not give a discharge for the whole obligation; sitaram v. Shirdhar [1903] 27 Bom. 292 and Tamman Singh v. Lachhmin Kunwari [1904] 26 Al. 318. On principle as well as on authority, therefore, we must hold that in the case before us the appointment of one of the mortgagees as administrator to the estate of the mortgagor did not extinguish the right of action of the mortgagee other than the one who wasso appointed administrator and had assets in his hands sufficient to satisfy his share of the mortgage debt.

17. Following the above decision it was held in Umes Chandra v. Dinabandhu [1913] 21 C.L.J. 570 that a payment made by a mortgagor to one of two joint mortgagees is not a good payment as against the other mortgagee. The learned Judges declined to follow the contrary opinion in Barber v. Ramana [1897] 20 Mad. 461 adopted by the majority of the Judges in Annapurnamma v. Akkaya [1913] 36 Mad. 544 and observed that the dissent by White, C.J., enunciated the contract rule on the subject. Lastly, in the case of Shaikh Hakim v. Adwaita Chandra Das Dalal [1918] 22 C.W.N. 1021, it was held that payment to one of several joint creditors does not necessarily operate as a discharge of the debt in so far as the other creditors are concerned, and that in the absence of any evidence or circumstances which would justify a contrary inference, it will be presumed notwithstanding the form of the obligation that a debt due to a member of joint creditors is due to them in severalty.

18. A similar view has been taken in the Patna High Court see Syed Abbas Ali v. Misri Lal [1920] 5 Oat. L.J. 376 and Banamali Satpathi v. Talna Ramhari Patra [1920] 5 Pat. L.J. 151, a case of one of the heirs of a mortgagee, though a contrary view was taken in the earlier case of Purbhu Ram v. Jhalu Kuer [1917] 2 Pat. L.J. 520. In the Bombay High Court also the correctness of the decision in Barber v. Ramanna [1897] 20 Mad. 461 was doubted; see Sitaram v. Shridhar [1904] 26 All. 318, a case of several heirs of a mortgagee. In Shrinivasdas v. Meherbai [1916] 41 Bom. 300 the question was whether a vendor had made out 'a market able title free from all reasonable doubts' which he had contracted to do by a written agreement, dated 18th October 1913, to sell certain land in Bombay. I here had been a mortgage effected on the property on 26th April 1892 in favour of his joint mortgagees by an agreement of charge duly registered, and the deposit of the title deeds of the property with the mortgagees. To deduce a good title it became necessary to prove that the mortgage had been discharged. As proof of that fact the vendor produced a certified copy of a release, dated 30th September 1902, which had been executed by only one of the joint mortgagees but which recited the death of the other mortgagee, the facts that his co-mortgagor was his sole heir and the redemption of the property from the equitable charge created by the agreement of 26th April 1892, it was held (reversing the decisions of the Courts in India) that the recitals in the release were not evidence against the joint mortgagee and that the title contended for had not been deduced. It is to be noticed that if release by one of the mortgagees operated as a valid discharge it would not be necessary to go into the question whether the release was evidence against the other mortgagee.

19. The weight of authority in the Indian Courts is against the appellant.

20. It is contended, however, that whatever view the subsequent English decisions might have taken, the Indian Contract Act in enacting Section 38 adopted the view taken in Wallace v. Kelsall [1919] 41 All. 631. But as pointed out by White, C.J., that section does not deal with the case of discharge of a debt and unless the section compels us to adopt the view contended for by the appellant, we think we should follow the equitable rule stated by Wills, J., in Steeds v. Steeds [1889] 22 Q.B.D. 537 citing from Lord Alvenley, M.R., Morley v. Bird [1798] 3 Ves. 631 that although the mortgagees take a joint security, each means to lend his own money and to take back his own.

21. The mortgage bond (in the original) makes it quite clear that the money was borrowed from both and the mortgagors agreed to pay both of them. The learned Subordinate Judge finds that the plea of payment in good faith cannot be entertained. He points out that the mortgagors could not but have been fully aware of the great tension of feeling between the plaintiff and the Defendant No. 2 at the time when they executed the kobala in favour of the latter, that in the kobala itself there are recitals clearly indicating that the mortgagors were fully aware of the severance of interest between the two brothers and it was at their own peril that they made payment of the mortgage debt to the Defendant No. 2 alone without any reference to the plaintiff. There was a stipulation that if the mortgagors were in future made liable, the Defendant No. 2 would be liable to compensate them. The mortgage, bonds were not produced. In ail these circumstances, we think that no question of payment in good faith can arise even if it. is material.

22. It is contended that whatever the original intention might have been at the tim3 the mortgage deed was executed, each of the brothers was authorized to realize debts from debtors under the deed of partition. The 8th paragraph which deals with the money-lending business runs as follows:

That a duplicate list being prepared of the ijmali (joint) money-lending business and decrees excluding the personal money-lending transaction of the parties, in the month of Chaitra 1327 B.S., one shall be kept with the second party and the other with the third party, the ijmali (joint) deeds relating to the ijmali (joint) money-lending businesses shall be kept in an ijmali (joint) safe in the custody of two amlas (officers), one authorised by the second party and another authorised by the third party; and the safe being kept under duplicate keys, one pf the keys will be entrusted with the second party's authorised amla (officer) and the other key with the third party's authorised amla (officer). Whenever any money on account of ijmali (joint) money-leading business or decree be realised, the same being at the same time divided in two equal parts, the second party and third, party will get it in equal shares.

23. We do not see any indication in the deed of partition of any authority to either brother to realise debts separately. Duplicate lists were to be prepared of the joint money-lending business, one being kept with each brother the joint deeds relating to the joint money-lending business to be kept in the custody of two amlas (officers), one authorised by each brother, under duplicate keys one to be kept with the officer of each brother. These provisions are inconsistent with the idea of each brother being authorised to realise debts without reference to the other. And lastly the provision that:

whenever any money on account of the joint money-lending business or decree be realised, the same being at the same time divided in two equal parts, the two brothers would get it in equal shares,

contemplates realisation of debts jointly by the two brothers, as the money is to be divided forthwith.

24. Having regard to the provisions of the mortgage bond and the deed of partition we think that there is nothing to indicate that it was intended that each of the mortgagees was a creditor for the whole. It cannot, therefore, be presumed that the payment to one would liberate the debtor against all the creditors; on the other hand, the presumption is that each was a creditor for his own share and could not give a discharge for the whole obligation.

25. Lastly, it is contended that the plaintiff has realised some moneys due to the two brothers jointly, and the defendant claimed a set-off of Rs. 36,500. But he failed to pay the Court-fee upon the setoff claimed and no issue was accordingly raised upon the point. Any amount however, which might have been realised by the Defendant No. 2 would be taken into account at the time of adjustment of accounts between the two brothers. But there is no reason why the plaintiff should be driven to a suit for adjustment of accounts when he is entitled to his share of the mortgage debt.

26. For all these reasons we think that the decision, of the Court below is right, and these appeals must be dismissed with costs. The time for redemption is extended by three months from to-day.


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