1. This appeal arises out of a suit brought by the plaintiffs-appellants to recover money due under a mortgage deed executed by the defendants in favour of the predecessor-in-title of the plaintiffs, and for certain other sums of money claimed as damages, on the allegation that the mortgage security has been impaired by reason of a decree obtained by one Bhagaban Chunder Nuskar against the plaintiffs, and that the plaintiffs had to incur expense in the litigation with Bhagaban Chunder Nuskar.
2. The defence, so far as it is necessary to refer to it for the purposes of this appeal, was a denial of liability, on the ground of no money having been borrowed on the mortgage deed, and also on the ground that the plaintiffs' prayer for foreclosure and sale was illegal, and on the further ground that the mortgage security was not impaired by any wrongful act on the part of the defendants.
3. The First Court held that the plaintiffs were not entitled to any decree for sale of the mortgaged property, but that they were entitled to a decree, making the defendants personally liable for the amount claimed, by reason of the mortgage security having been impaired through the wrongful conduct of the defendants.
4. Against that decree the defendants preferred an appeal, and they were allowed by the Appellate Court to take the objection, not raised by them either in the First Court or in their memorandum of appeal, that the plaintiffs were not entitled to any decree by reason of their not having taken out a certificate under the Succession Certificate Act, VII of 1889, and the Lower Appellate Court has given effect to that objection, and dismissed the suit under Section 4 of the Succession Certificate Act.
5. From that decision of the Lower Appellate Court the plaintiffs have preferred this appeal, and it is contended on their behalf that the Court of Appeal below was wrong in holding that Section 4 of the Succession Certificate Act was a bar to the maintenance of the suit; and that the Court of Appeal below was further wrong in allowing the objection under that section to be raised in the appellate stage of the case without giving the plaintiffs an opportunity of producing a certificate under the Succession Certificate Act.
6. If the first branch of the appellants' contention is right, it will be unnecessary to go into the second. We are of opinion that the first branch of the appellants' contention is correct. The mortgage in this case was a usufructuary mortgage, and one of the objections successfully urged by the defendants in the First Court was that the plaintiffs were precluded by the terms of the mortgage deed from suing for the money. The ground upon which the plaintiffs were held by that Court to be entitled to a decree was that by reason of events that subsequently happened their mortgage security was impaired, and they acquired the right to obtain a personal decree against the mortgagors. If that was so, can it be said that the money for which this suit has been brought was a debt due to the estate of the deceased mortgagee within the meaning of Section 4, Sub-section 1, Clause (A) of the Succession Certificate Act? We are opinion that the question must be answered in the negative. The case before us is not like a case in which the money was due to a deceased person upon the expiry of a certain time when it fell due. The case before us is one in which, if the security had remained unimpaired, the right to demand payment of the money would never have accrued to the mortgagee or his legal representatives, and the right to obtain a personal decree against the mortgagors arose only upon the happening of a contingency, which might never have happened, namely, the obtaining of a decree by Bhagaban Chunder Nuskar, which deprived the mortgagee's heirs, the plaintiffs, of a part of the mortgaged property. That decree was obtained not against the original mortgagee, but against the plaintiffs themselves. That being so, we think the right to demand payment of the money accrued for the first time to the plaintiffs, and Section 4 of the Succession Certificate Act was, therefore, no bar to the plaintiff's obtaining a decree in this suit.
7. In this view of the ease, it becomes unnecessary to consider the second branch of the appellant's contention; but we may observe that it is open to doubt whether the District Judge was right in allowing the objection under Section 4 of the Succession Certificate Act to be taken in the appellate stage of the case, when the objection was not raised before the First Court, without giving the plaintiffs an opportunity of meeting it by producing a succession certificate.
8. The result is that the decree of this Lower Appellate Court will be set aside, and the case sent back to that Court in order that it may dispose of the other points raised in the appeal before it.
9. The appellants are entitled to the costs of this appeal. All other costs will abide the result.