S.K. Ghose, J.
1. These two appeals arise out of a judgment and decree in a suit upon a mortgage which was brought under the following circumstances: Defendant 1 is the proprietor of an estate, defendant 2 who died pending the hearing of the suit, defendant 1 being substituted in her place, was the widow of defendant 1's grandfather. Defendant 1 on attaining majority executed a deed of trust in favour of defendant 2 for the management of the estate. From 1914 onwards, defendants 1 and 2 together executed eight mortgage bonds as follows: Between 1914 and 1917 they executed four mortgage bonds in favour of the Maharaja of Mymensingh. On 18th March 1918 they executed the fifth mortgage bond, viz., in favour of the predecessors of defendants 3 to 6 (vide Ex. S) in respect of properties which are mentioned in para. 4 of the plaint. By this bond defendants 3 to 6 were subrogated to the first mortgage in favour of the Maharaja. On 18th August 1918 the sixth mortgage bond which was in favour of the plaintiff (vide, Ex. 1) was executed and by this document the plaintiff was subrogated to mortgages Nos. 2 to 4 in favour of the Maharaja. On 16th April 1920 the seventh mortgage which was in favour of defendants 3 to (6, vide Ex. R) was executed. The eighth mortgage and the third one in favour of the same defendants (vide Ex, T) was executed on 17th February 1923. This mortgage comprised all the properties comprised in the previous mortgages and also a new property which was described as Bailor House. So it happened that in respect of the plaintiff's mortgage, defendants 3 to 6 came to be in the position of prior mortgagees with regard to certain properties and subsequent mortgagees with regard to remaining properties, as also with regard to an additional property. Plaintiff in her plaint while impleading all the defendants mentioned all the mortgages executed in favour of defendants 3 to 6. According to the statements made in paras. 3 and 4 of the plaint these defendants were impleaded in order to give them an opportunity to consent to the order in which the mortgage properties were to be sold, plaintiff's prayer being that the properties which formed the subject matter of the prior mortgage to defendants 3 to 6 were to be sold last of all: vide para. 4 of the plaint. On 4th June 1931, defendants 3 to 6 filed a written statement in which they mentioned the mortgages in their favour and pleaded that the plaintiff was not entitled to pray for a decree for the auction sale of the properties except by redemption of the mortgages executed in favour of defendants 3 to 6 or their predecessor. On 25th June 1931 defendant 1 filed a petition for time to file a written statement. This was rejected and in the course of the order the learned Subordinate Judge said:
He (defendant 1) bad no right to look into the pro forma defendant's written statement before filing his own. I allow two days' time. etc.
2. After this, defendant 1 did not file any written statement. On 29th June 1931 defendant 2 filed her written statement. In the course of this she stated that the mortgage deed set up by the plaintiff was collusive, fraudulent and obtained by undue influence, that she, defendant 2, had no power to do anything against the will of defendant 1 who got whatever he liked to be done by defendant 2. Defendant 2 further stated that the mortgage deed in suit had been created by the Officer of the Maharaja and the plaintiff in collusion with defendant 1 and she was not aware whether defendant 1 had received the consideration or not. She further pleaded that the claim was barred by limitation. In para. 12 of the written statement she pleaded that the plaintiff could not put to sale any of the properties without redeeming prior mortgages. On 6th July 1931 an additional written statement was filed by defendants 3 to 6 in which they gave details of the prior and subsequent mortgages executed in their favour by defendants 1 and 2 and they also made a detailed claim of the reliefs to which they were entitled. Defendant 2 died on 8th September 1932 and defendant 1 was substituted in her place on 13th September. On 1st November 1932 defendant 1 prayed for permission to file written statement. The order was as follows:
He is permitted to file written statement only on points raised by defendant 2 and such written statement must be filed within a week from this date. No fresh ground of defence can be taken at this stage by defendant 1.
3. On 14th November 1932 defendant 1 filed a written statement professing to be a party substituted in place of defendant 2. In the course of that written statement he averred that the properties were subject to various other interests, that defendants 3 to 6 were not entitled to get any decree against defendant 1 in the present suit, that the agreement as to payment of compound interests as embodied in the deeds filed by defendants 3 to 6 was opposed to law, that the claim of defendants 3 to 6 was barred by limitation, that the amounts mentioned by the plaintiff and defendants 3 to 6 were not due to them and that in general all the objections made by defendant 2 would apply to the claim of defendants 3 to 6. In para. 13 of this written statement defendant 1 further stated that the written statement of defendants 3 to 6 had been filed in the form of a plaint and the same would be considered as a plaint according to law. In Para. 16 it is stated as follows:
Be it stated that if defendants 3 to 6 bring a separate suit, I shall be entitled to raise all the objections that can be made against their claim and I file this written statement reserving my rights to put in objections. The same shall not be affected in any way by any statement made in this written statement.
4. On 19th November 1932, the learned Subordinate Judge appears to have considered the written statement and he made an order in the course of which he directed that paras. 5 to 7 in the written statement of defendant 1 referred to last would not be admitted as defence in the suit as they contained issues of interest in which the mortgagor had no share. He further said that para. 2 was practically equivalent to Para. 2 of defendant 2's written statement in effect though not in detail and he recorded an order as follows: 'I shall take evidence regarding these payments if the suit is otherwise liable to be barred by limitation, etc.'.
5. Finally, the suit came to hearing on issues which had been framed as early as 8th July 1931. As regards the plaintiff's mortgage bond in suit the learned Subordinate Judge had held that defendant 2 was fully aware of the nature of the document, but that she was not aware that there was a stipulation in it to the effect that in case the entire amount due should not be realized by the sale of the mortgaged properties the balance would be realized by the sale of her other properties. To that extent the learned Judge held that defendant 2 did not understand the contents of the document, and that therefore defendant 2 was, not personally liable, but that defendant 1 was. He also held that the defendants had received full amount of the consideration money. Upon these findings the learned Subordinate Judge decreed the suit. As to the form of the decree and the relief to which defendants 3 to 6 were entitled, the learned Subordinate Judge proceeded to make the order as follows: He held that the plaintiff not having prayed for redemption of the prior mortgage in favour of defendants 3 to 6 the decree should not be in Form No. 10, but that it should be in Form No. 9. As regards the prior mortgage in question under Ex. S he directed that necessary action would be taken under Rule 12, Order 34, Civil P.C., if application was made by any of the parties and defendants 3 to 6 gave their consent. He refused the prayer of defendants 3 to 6 that they should be given liberty to apply for sale of the additional property mortgaged by Ex. T and he also refused them liberty to apply for a personal decree. On these findings he directed that a decree be drawn up in Form No. 9 with the necessary variations. Against that judgment First Appeal No. 2 of 1934 has been filed by defendants 3 to 6 and First Appeal No. 164 of 1934 has been filed by defendant 1. Following the order of argument, I take up First Appeal No. 2 filed by defendants 3 to 6. It is resisted both by the plaintiff and by defendant 1. The grounds urged in support of the appeal are: first that the learned Judge below has erred in not passing a decree in accordance with Form No. 10, Appx. D, Civil P.C. Secondly, that he has erred in not providing for a personal decree in favour of these appellants, and, thirdly, he has erred in not providing in the decree, for the sale, if necessary, of the additional property which was mortgaged by the document Ex. T.
6. I take up first the question regarding the properties covered by the prior mortgage in favour of defendants 3 to 6 by Ex. S. Now with regard to the rights accruing as between a mortgagor and successive mortgagees it is relevant to remember that a puisne mortgagee has the right to redeem a prior mortgage bond and a prior mortgagee has the right to foreclose a puisne mortgage. All persons having interest in the right of redemption or in the mortgage security are proper parties in a suit relating to mortgage. But the Explanation to Order 34, Rule 1, Civil P.C., makes it clear that a prior mortgagee is no longer a necessary party as held in some decisions under Section 85 of the old T.P. Act. Even now the omission to implead a prior mortgagee does not affect his rights. But where he is impleaded the provisions of Order 34, Rule 4, sub-r. (4) apply and a decree is to be drawn up as provided for therein. Mr. Gupta for the appellant-defendants 3 to 6 has contended that in such a case the Court is bound to adopt one of the Forms, namely, Forms Nos. 9, 10 and 11 which are mentioned in the aforesaid sub-rule and which would be suitable to the case and to give a decree in respect of the parties to the suit. The expression 'parties to the suit' no doubt includes a prior mortgagee where impleaded. Mr. Gupta has pointed out that even under the law as it stood before the amendment of 1929 of Rule 4, some High Courts found it necessary to use the form such as Form No. 55 of the Madras High Court. That refers to a decree in a suit by a second mortgagee against the first mortgagee and the mortgagor when the first mortgagee consents to a sale free from his mortgage. That does not carry the matter further than the provisions of Rule 12 which applies where the prior mortgage is not sought to be redeemed and therefore there is no mortgage decree in respect of the prior mortgage.
7. Mr. Gupta has further contended that the learned Judge below was wrong in thinking that the Forms in Appx. D have not the same statutory force as the rules in the body of the Code; that under sub-r. (4) of Rule 4 one has to look to Forms Nos. 9 to 11 for the adjudication of the rights of the parties; and that while the provision in Order 48, Rule 3 is a general one with respect to the forms given in Appendix, sub-r. (4) of Order 34, Rule 4 contains a special provision with regard to the use of Forms Nos. 9 to 11 in the matter of drawing up of a decree. But it is to be noted that in either case it is expressly stated that the forms may be used with such variations as the circumstances of the case may require. Therefore even in the word of the statute upon which Mr. Gupta has relied it cannot be said that the Court is divested of a discretion to make an order in accordance with the circumstances of the case. A prior mortgagee, it is to be remembered, though not a necessary party, may be impleaded and where the plaintiff offers to redeem the prior mortgage no doubt a decree should follow. But if the plaintiff impleads the prior mortgagee and at the same time he does not offer to redeem his mortgage, the prior mortgagee is not affected by the decree in that suit because the sale, if held, will be subject to his mortgage. This was the effect of the decision in Radha Kishun v. Khurshed Hossein AIR 1920 P C 81 to which reference has been made in the course of the argument.
8. Now, in the present case the plaintiff does not profess to join the prior mortgagee as such. He has simply mentioned the prior mortgagee in order to give defendants 3 to 6 an opportunity to settle the order in which the properties should be sold. The plaintiff does not offer to redeem the prior mortgage and he does not object to the decree as made by the Subordinate Judge which is consistent with the provisions of Order 34, Rule 12. But it is stated by the learned advocate for the plaintiff-respondent in this Court that the plaintiff objects to a mortgage decree if drawn up in Form No. 10 in favour of defendants 3 to 6, because in that case a liability would be thrown upon the plaintiff to redeem the prior mortgage and it may be difficult for her to comply with that direction. Mr. Gupta's contention is that, since defendants 3 to 6 are asking to be redeemed, a mortgage decree should be made in their favour as provided for in Form No. 10, because the scope and object of Rule 1 of Order 34 is to avoid multiplicity of suits. Mr. Gupta cannot put it at anything higher than that. But on the other hand the Court cannot overlook the position of the plaintiff. It is for the plaintiff to seek relief and a decree in favour of the prior mortgagee as such in accordance with Form No. 10 may result in hampering the relief which the plaintiff is entitled to get in her suit.
9. On the other hand this is not a case where the priority of defendants 3 to 6 in respect of their mortgage is in any way impugned and as I have mentioned already the decree as given by the Subordinate Judge cannot affect their rights as such, nor can it be said that defendants 3 to 6 in this suit are bound to assert their rights as prior mortgagees on the ground that the decree will be construed as res judicata against them. With regard to the position of subsequent mortgagee, it has been held that he is brought into the suit simply for the purpose of receiving any surplus sale proceeds or of redeeming and that he cannot take any independent action and treat the decree as in other respects in his favour: Sarat Chandra Roy v. Mahapiet (1910) 37 Cal 907. The first mortgagee is in a better position because he had a paramount title and will not be affected by a decree for sale. Looking to Form No. 10 of Appx. D, it will be clear that it applies to a case where plaintiff sues for redemption of the prior mortgage and foreclosure or sale on subsequent mortgage and para. 4 provides that defendant 2, first mortgagee shall be at liberty to apply to the Court that the suit be dismissed or for a final decree in case there is default of payment of the amount due to defendant 2. In this view it seems to me that defendants 3 to 6 are not entitled as of right to get a decree in Form No. 10 in respect of the properties covered by the prior mortgage and that having regard to the facts of the case, the Court acted properly in refusing to give such a decree.
10. On this question it is proper also not to overlook the attitude of defendant 1. Dr. Sen Gupta appearing for that defendant in this Court has contended that what defendant 1 wants is a proper adjudication of all the claims upon all the mortgages, but his complaint is that the defence of defendants 3 to 6 was put forward as a plaint, that they were liable to pay court-fees, and the defence of defendant 1 was shut out by the trial Court. The question of court-fees does not appear to have been urged before the trial Court although, as I have mentioned already in the written statement filed on 14th November 1932, para. 13, it is stated that the written statement of defendants 3 to 6 had been filed in the form of a plaint. As regards the defence of defendant 1 or of defendant 2 with regard to the mortgages in favour of defendants 3 to 6, I have already referred to the order made by the learned Subordinate Judge, namely, Order No. 5 dated 25th June 1931 on the order-sheet. Mr. Gupta conceded that this order was wrong but he has contended that the Subordinate Judge set it right by a subsequent order, namely, Order No. 45 dated 19th November 1932. A perusal of this order, however shows that the learned Judge did not really go back on his previous order by which he directed that the principal defendant had no right to look into the written statement of defendants 3 to 6. By the subsequent order he allowed the defence in para. 2 of the written statement of 14th November 1932 to be considered as being practically equivalent to para. 2 of the written statement filed by defendant 2. But all the time the defence which was considered by the trial Court was confined to the question with regard the plaintiff's mortgage in suit; it was not considered with regard to mortgages in favour of defendants 3 to 6. Thus when the learned Judge remarked in his judgment that 'defendant 1 has no defence', he was not thinking apparently of the defence with regard to the mortgages in favour of defendants 3 to 6. Mr. Gupta has contended that really no mischief was done because evidence regarding the other bonds was led. But the only issue was issue 4 which was drawn up at an early stage of the case and upon this issue the decision was summary one. The learned Judge remarked as follows:
No objection has been raised as to the correctness of the accounts furnished by the mortgagees and subject to any arithmetical mistake being detected hereafter, I decide issue 4 in accordance with such accounts.
11. In these circumstances, I think that the contention of Mr. Gupta cannot be accepted and a decree cannot be made in Form No. 10 in favour of the prior mortgage of defendants 3 to 6. With regard to the properties covered by the subsequent mortgage, Ex. T the question is whether defendants 3 to 6 should have been given liberty to apply for the sale of the additional property. Here again Mr. Gupta, has relied upon the forms which are mentioned in Order 34. Rule 4, sub-r. (4). But on the other hand, it is to be remembered that those provisions relate to the same property which is the subject matter of the mortgage whether as between the mortgagor and the mortgagee or as amongst successive mortgagees. In Form Nos. 9 to 11, the reference is to the same mortgage property. Dr. Sen Gupta has pointed out that under Section 67-A, T.P. Act, which is really procedural, a mortgagee is bound to bring one suit on several mortgages, so that if defendants 3 to 6 are to sue they would have to sue upon all the three mortgages; and that they cannot simply because they are made defendants in the plaintiff's suit be placed in a better position and be entitled to get a mortgage decree in respect of a property which is not included in the mortgage in favour of the plaintiff. This is confirmed by the decision in Sarat Chandra Roy v. Mahapiet (1910) 37 Cal 907 and Kalipada Mukerji v. Basanta Kumar Dutta : AIR1932Cal126 . Mr. Gupta's contention is that these cases proceed on the footing that a subsequent mortgagee cannot get a personal decree. This argument is open to the criticism that it is an argument in a circle. Further there may be other encumbrances with regard to an additional property and it is not possible to implead them in the plaintiff's suit. Upon all these considerations it seems to me that the learned Judge was right in excluding the additional property.
12. Then as regards the question of personal decree in favour of defendants 3 to 6 it follows that if the Ex. T property is to be excluded, these defendants are not entitled to get a personal decree. This view is consistent with para. 4, Clause (4) of Form No. 9 in Appx. D, Civil P.C. The learned Judge below was not quite right in saying that the relief as asked for by defendants 3 to 6 cannot be given because the directions in Form No. 9 giving such a right to the subsequent mortgagees are not supported by the provisions of Rule 6. Mr. Gupta has contended that Rule 6 is not exhaustive and it does not exclude the rights of a defendant when he is the mortgagee, but this presupposes that there is a decree in favour of the plaintiff in Form No. 9 which, as I have said, cannot be applied in respect of the property covered by Ex. T. In such a case the Court is not to give a personal decree and in the present case there is no reason why such a decree should be given. Upon these considerations we think that Appeal No. 2 preferred by defendants 3 to 6 must fail. It is dismissed with costs. Then I take up Appeal No. 164 of 1934 which is preferred by defendant 1. The main ground upon which the decision of that appeal turns is that the Court was wrong in holding that defendant 2 was bound by the mortgage bond Ex. 1 in favour of the plaintiff. It is pointed out that defendant 2 in her defence stated that the mortgage was collusive and fraudulent and obtained at the instance of defendant 1 whom defendant 2 had no power to resist. Defendant 2 being dead the same defence is raised by defendant 1, that is to say, defendant 1 is in the position of claiming to take advantage of his own wrong. Dr. Sen Gupta appearing for him in this Court has conceded that the argument is immoral.
13. It may further be pointed out that in spite of the order of the learned Judge refusing to give defendant 1 opportunity to look into the defence of defendants 3 to 6 it was open to defendant 1 to file his defence on the material point with regard to the mortgage in suit. But he filed no defence. On the contrary to all the mortgage bonds not only defendant 2, but defendant 1 was a party. The learned Judge upon a consideration of the evidence which has been placed before us has found that defendant 2 fully understood the nature of the mortgage bond, but that she did not understand that part of it which contains a stipulation which would bind her personally. We do not consider that this view is consistent, having regard to the nature of the evidence. The main contention of Dr. Sen Gupta is that there is no evidence that the bond was explained to the lady. Now, as to the lady's personal capacity there is abundant evidence that she was intelligent, experienced and used to managing the estate herself. This is evidenced not only by the old document of 1854(vide Ex. C) by which she was given power to adopt, but also by the subsequent document of 1891 namely, the will Ex. B which shows that the father of defendant 1 had confidence in the lady. Even more important is the trust deed of 1914 by which defendant 1 himself made over the management of the properties to her. That deed no doubt states that the lady is very old, but this is accompanied by the statements to the effect that she is efficient and capable of managing the affairs of the estate, and the mere fact that the trust deed was effected in her favour only goes to confirm this. There is evidence that she could write very well.
14. As to the circumstances under which the plaintiff's bond came into existence it appears that first the money required for the stamp was raised by the promissory note which was executed both by defendants 1 and 2. For this purpose, the lady was brought from Bailor House to a house in Mymensingh town. After that a draft bond was prepared and this was taken by the officers of defendant 2 and subsequently endorsed by one of them at the house at which defendant 2 was staying. Among the people who were present at the execution of the document there were three pleaders, namely a son of a retained pleader of defendant 1, P.W. 2; and Jogendra Babu, and Abinash Babu another pleader. The Ammokter of defendant 2, D.W. 6 was present and some officers of the defendants were present (D. Ws. 2 and 4). On the side of the mortgagee plaintiff there were present the plaintiff's mukhtar and pleader Abinas Sarkar. The nature of the transaction appears quite clearly from the recitals therein. The three previous mortgages were recited as being paid up and there were various detailed statements. That there was payment of consideration is practically not challenged. Then it is noteworthy that subsequent to the execution of the document payments of interest were made from time to time by the admitted Ammokter of the defendants. One of the endorsements bearing date 9th Sravan 1337 which contains a recital of the previous payments bears the signatures of both the defendants. This was on 25th June 1931(vide paras. 6, 7 and 8), the objection is taken that defendant 2 knew nothing and that everything was done by defendant 1. The entire oral evidence has been placed before us. P.W. 1 retained mukhtar of the plaintiff and one of the attesting witnesses, say that the document was read over to the executant before execution and that the lady was in full possession of her understanding and she fully understood the contents of the documents. This is corroborated by the other attesting witnesses, namely P. Ws. 2 and 8.
15. The evidence on the other side is to the effect that the document was signed by the lady but that the contents were not explained to her. But we were not prepared to hold that evidence given on the side of the plaintiff should be disbelieved. No doubt the onus is on the party who sets up the deed executed by a pardanashin lady to satisfy the Court that it had been explained to her and understood by her. In the present case having regard to the circumstances we think that the learned Judge was right in holding that defendant 2, as well as defendant 1 executed the document fully understanding what she was doing, although as held by the learned Judge she did not understand that there was a stipulation making her personally liable. But that does not affect the main question. In this view the other points raised in this appeal do not require separate discussion. We accordingly hold agreeing with the learned Judge that Ex. 1 the mortgage in favour of the plaintiff was a valid document and the suit has been rightly decreed. Appeal No. 164 must therefore stand dismissed with costs. In the result both the appeals are dismissed with costs.
16. I agree.