1. This appeal arises out of a mortgage suit dismissed by the Subordinate Judge of Maldah. The plaintiff Gulzar Mondal (who died subsequently) and his cousins Sabektulla (the predecessors-in-interest of defendants 4, 5 and 6) and Sariatulla (the predecessor of defendants 7, 8, 9 and 10) lived in joint mess and had joint properties including a money-lending business which was carried on at several places. According to the plaint Sariat was the sole karta or manager till his death which happened in Baisakh 1315 B.E. After his death his son, defendant 4, was selected as the karta 'as he was smart and intelligent.' It appears that he was the karta at Rahanpur. The principal defendants 1 and 2 used to borrow money from the Mondal family. In 1313 B.E. they executed a mortgage-deed called a karbarnama in favour of Sariat as security for the loans up to a certain amount, After Sariat's death defendants 1 and 2 executed on 5th Magh 1315, corresponding to 11th January 1909, a fresh karbarnama in favour of Gulzar (who was in charge of the money-lending business at Biswanithpur, the family seat) and defendant 4. They were to borrow to the limit of Rs, 5,000 and pay interest at 1 per cent, per mensem with annual rests. The actual transactions were to be entered in a dastabij and the stipulation was that no transaction not entered therein would be taken into consideration. It appears that immediately before Sariat's death, when he was ill, the business at Rahanpur was placed in charge of a relative, Sahimaddi Munshi.
2. Defendant 4 thought he was making misappropriation and dismissed him. Dissensions started among the family and there were civil and criminal cases in which different members seem to have taken different sides. It is not clear when the business at Rahanpur came to an end. On the last day of limitation Gulzar commenced this action, for, his share of the mortgage-debt, viz., one-third. It was stated that the karbarnama and other papers were in the custody of defendant 4. Gulzar claimed his share of the mortgage-debt from: defendants 1 and 2 and there was an alternative prayer that if they had paid up and there was a valid discharge, a decree might be passed against defendant 4. Defendants 3 and 3-A were joined as being purchasers of a portion of the mortgaged properties. The heirs of Sabektulla and Sariatulla were also-joined and an option was given to them to join Gulzar as co-plaintiffs. The daughters of Sabektulla and Sariatulla, viz., defendants 6, 7 and 8, on their prayer, were transferred to the category of the plaintiffs and apparently accepted the statements in the plaint. Defendants 1 and 2, i.e., the principal defendants and defendant 4, the manager at Rahanpur, resisted the suit and their defence in short was that there had been an adjustment of accounts and the debt was paid up by defendants 1 and 2, who got back the karbarnama from defendant 4 and also a receipt from him. The dastabij which was to be a record of the transactions between the Mondals and the principal defendants is not forthcoming. The case for the plaintiff's was that it was with defendant 4; the defence was that it was sent to the Biswanipur along with other papers and received by Gulzar. In the absence of the dastabij the plaintiffs relied on the money advanced in 1906 in the time of Sariat and a hisab said to have been made up on 10th Magh, 1315 B.E. and a subsequent letter of acknowledgment. The question as to how much was actually advanced lost its importance on the plea set up. The learned Subordinate Judge held that defendants 1 and 2 had got a valid discharge from defendant 4 and that the latter could not be made liable without bringing a suit for accounts and in this view of the case he dismissed the suit. The plaintiffs have appealed.
3. The learned vakil appearing for the plaintiffs-appellants grounds his claim on the argument that one joint mortgagee cannot give a full discharge when there are joint mortgagees. The case of Abdul Hakim v. Adyata Chandra Das (1919) 22 C.W.N. 1021 was quoted for the principle, that payment to one of several joint creditors does not necessarily operate as a discharge of the debts in so far as the other creditors are concerned. The principle was affirmed in the case of Satindra Nath Choudhury v Jatindra Nath Choudhury : AIR1927Cal425 . The principle is not applicable to the facts of the present case. The payment here was to a joint mortgagee, but he was also a person who was the manager and agent of all the Monals. The question really is whether he could take the money on behalf of all the co-sharers. Defendants 1 and 2 had a running account. They were to take loans which were to be entered in a dastabij kept by defendant 4 and he was to receive the payments. Defendant 4 is described as the manager and agent of the Mondals at Rahanpur in the plaint and the statement is repeated in the plaint more than once. It was urged that defendant 4 worked under Gulzar's control and for this argument reliance is placed on the written statement of defendant 4, that when the debt was paid up a remission was made with the consent of Gulzar. Defendant 4 made this statement to show that Gulzar was aware of the payment of the debt. It is quite conceivable that Gulzar was consulted. It would be natural for defendant 4 to do this, but the argument that defendant 4 acted under Gulzar and had no authority beyond a certain point is against the plaint.
4. The learned vakil contended that there was collusion between the contesting defendants. He referred to the evidence given by defendant 1 in a criminal case, on 8th April 1910, wherein he said he shad paid up Sariat's loan, but he also asserted that he had taken a fresh loan and he admitted the agreement or karbarnama. The learned vakil then referred to a letter from one of the defendants which goes to show that the contesting defendants consulted together before filing the respective defence. It appears that the Court below allowed the defendants about a year to file their written statements. It is to be regretted that the Court was so lax in this matter, but people may consult each other when they happen to be in the same box. During the stress of arguments the learned vakil advanced the theory that no payment had been made and that the endorsement of payment was made on the karbarnama after the suit was filed. The suit, as I have said, was filed on the last day of limitation. It is inconceivable why Masinaddin (defendant 4) should not realize anything from defendants 1 and 2 during the 12 years, In the Court below, it would appear that the Suggestion was, that the payment was made not in 1317, but in 1318 B.E. and that was done by defendants 1 and 2 transferring certain properties to defendant 4. The allegation that there was collusion does not rise beyond mere suspicion. Even if there was any collusion defendants 1 and 2 cannot be held liable. They have paid up to the manager and agent and they have got back their mortgage-deed fully satisfied. They have obtained a valid discharge.
5. It was argued that there was litigation between the different members of the Mondal family and that if defendants 1 and 2 paid up at that time to one member they did so at their peril. It appears that Sariat's daughters thought that they were being deprived of their share in the business and they started litigation. Gulzar at that time was on the side of defendant 4. It appears that the police came and locked up the Rahanpur gaddi, but this was only for a brief period. The police returned the keys and the business was resumed. Gulzar himself filed an affidavit so late as 17th July 1911, and said so, though he alleged that they had started a fresh business after the dismissal of Sahimaddin. Defendant 4 remained the manager at Rahanpur and nothing was done to remove him from the position of manager which was originally assigned be him. In this connexion it may be mentioned that Sariat's daughters subsequently filed an account suit (viz. on 24th April 1911) against both defendant 4 and Gulzar for accounts from Baisakh 1315 B.E. to Aswin 1316 B.E. and the decree, Ex. I, was obtained only against defendant 4. The debt under discussion does not seem to have formed the subject-matter of that suit. Sariat's daughters may not have been aware of it. They did not challenge the position of defendant 4, but wanted accounts from him. Defendant 4 continued to be the manager till July 1911 and for some time after Evidence was given by a son-in-law of Khatija (one of the daughters of Sariat) that he warned the principal defendants not to pay to one co-sharer, but, as the learned Subordinate Judge points out, it cannot be believed that he would give a warning in 1316 B.E. when tie did not marry into the family till two years after. The finding of the learned Subordinate Judge that defendants 1 and 2 got a valid discharge appears to be unassailable.
6. There remains the question whether there can be a decree against defendant 4 in this suit. The learned Subordinate Judge says, and we think very properly, that the plaintiffs should have brought an account suit. The learned vakil states that the time has gone and he refers to the fact that defendant 4 and Gulzar have realized their shares by bringing suits on certain bonds. The decrees have been filed, but we are not in a position to know under what circumstances the decrees were achieved. It seems difficult to believe that the parties never discussed among themselves the present debt. It is the fault of the plaintiffs that they have delayed so long in bringing this action and other remedies are barred. The position being that defendant 4 was the manager and karta of the Rahanpur gaddi, and it being common ground that money pissed between Rahanpur and the principal gaddi, the plaintiffs cannot succeed except by an adjustment of accounts in properly framed account suit. We, therefore, agree with the conclusions arrived at by the Court below. The appeal is dismissed with costs. There will be two sets of costs, one set for defendants 1 and 2 and another for defendant 4.
B.B. Ghose, J.
7. I agree.