P.B. Mukharji, J.
1. This is the plaintiff's appeal from the Judgment of Mr. Justice G. K. Mitter, dismissing the plaintiff's mortgage suit against the first two defendants and granting only a personal decree for Rs. 44,325/- with costs against the rest of the defendants limited to the extent of assets received by them from the deceased predecessor of the defendants.
2. There were seven defendants to the suit. Defendants 3 to 7 did not enter appearance and contest the suit. Defendants 1 and 2 entered appearance, filed, their written statement and contested the plaintiff's claim at the trial. The first two defendants, however, called no evidence. The relevant facts may be briefly accounted.
3. The plaintiff's suit was on an equitable mortgage by deposit of title deeds against the defendants in respect of premises No, 9/3, Arpuli Lane, Calcutta and 81, Lower Circular Road, Calcutta. In these properties Noder Chand Dutt and Gora Chancl Dutt were supposed to have an undivided 1/20th share. Thereafter by a partition suit Noder Chand and Gore Chand were allotted the northern portion of the land at 81, Lower Circular Road, Calcutta, now separately numbered as 81/2, Lower Circular Road. The loan is evidenced by a promissory note dated the 13th October, 1923 executed by Noder Chand Dutt and Gora Chand Dutt for the sum of Rs. 22,500/-. In point of fact, the loan has been going on for some time before that date. Noder Chand and Gora Chand continued to make payments on account of interest on the said promissory note and endorsed such payments on the note. The last of the endorsements made by both Noder Chand Dutt and Gora Chand Dutt on the promissory note is dated the 30th July, 1938.
Noder Chand died on the 9th February, 1939, leaving the first two defendants, his son and widow, as his heirs and legal representatives. Thereafter the endorsements of the payments of interest on the note were continued to be made by Gora Chand Dutt until the 25th July, 1947. Then on the 30th October, 1947 Gora Chand Dutt also died. Both Gora Chand and Noder Chand died intestate. Defendants 3 to 7 are the widow and the sons of Gora Chand Dutt. Plaintiffs claim a sum of Rs. 44,325/-being twice the principal of Rs. 22,500/- less Rs. 675/- by reason of the law of Damduput. The present plaintiffs are the executors of Kumar Kartick Churn Mullick since deceased who lent the aforesaid moneys to Noder Chand and Gora Chand and who claimed to be the mortgagee.
4. Kumar Kartick Churn Mullick died after giving evidence in the suit.
5. On the first issue the learned trial Judge came to the finding that Noder Chand Dutt and Gora Chand Dutt did not deposit the title deeds with Kumar Kartick Churn Mullick with intent to create a security for the repayment of the debis due to Kartick. In other words, the learned trial Judge came to the conclusion that there was no mortgage. On the second issue as to whether Kartick lent and advanced any money to Noder Chand and Gora Chand, he came to the finding that the promissory note was executed for valuable consideration.
6. The appellants before us are the executors of the deceased plaintiff who are the present plaintiffs.
7. The appellants contend that the record and the evidence prove conclusively that there was this mortgage and that there was no evidence to the contrary. The learned trial Judge says that when the case first came on for hearing he was of the opinion that it was a straightforward case and the fact of the deposit of the title deeds coupled with the existence of a loan which could not be disputed, would raise a presumption that a mortgage had been created. But then gradually the learned Judge says that he changed his mind, and he mentions the reasons which influenced him most to come to a different conclusion to hold that there was no mortgage.
8. His first reason is the delay of the mortgagee in enforcing the mortgage after about 25 years although he had the title deeds lying with him from 1923. Mere delay, but within limitation cannot in our view defeat a mortgage. The fact remains that both Noder Chand Dutt and Gora Chand Dutt were relatives of Kumar Kartick Churn Mullick and as they were acknowledging payment of interest on the promissory note and as there was the security for the loan, the mortgagee thought that he would not be a loser by not filing the suit. I am of the opinion that this is a sensible and reasonable explanation for the delay in actually bringing on the litigation to enforce the mortgage.
9. The second reason of the learned Judge was that Kartick's conduct was surprising in that that he made no mention of the mortgage even after the death of Noder Chand Dutt which took place as long ago as in 1939 and that he allowed his dues under the promissory note to be barred against the heirs of Noder Chand Dutt and he says that so long as Gora Chand Dutt was alive, which was for nearly 8 years after the death of Noder Chand, the mortgagee took no steps to put the mortgage in suit and was merely content to take payment of Rs. 25/- only at the end of every third year on the promissory note. As against this, the evidence is clear that Kartick Churn Mullick was demanding payment. On the death of Noder Chand, Kartick's evidence in answer to Q. 71 is that Gora Chand approached him and proraised to pay the sum after selling the property. It is also his evidence that Gora Chand came to him and gave him hopes. Kartick's evidence further is that even after the death of Gora Chand he told the heirs of Noder Chand and Gora Chand who are the present defendants about the payment of this money and also that there was a mortgage by deposit of title deeds. That evidence appears in answer to Q. 54. That, again, is not contradicted by any of the heirs of Noder Chand and Gora Chand who are defendants and parties to the suit. The learned trial Judge says that he could not make out what prompted Kartick to wait for the institution of the suit until after the death of Gora Chand unless it was a fact that he was not in a position to establish his rights as a mortgagee during the life time of the debtors. That appears to us as an inference of suspicion not based on facts or evidence. Rightly or wrongly, Kartick in his evidence said that he told the heirs of title deeds. There should at least have been some denial by the heirs themselves. That denial is not forthcoming.
10. The next reason of the learned trial Judge for holding against the mortgage is that in the examination-in-chief of the mortgagee the intention to create security was not established and all that he was asked there was only about the deposit of title deeds. That will appear from the answer to Q. 8 of Kartick Churn Mullick. In cross-examination, specially in answer to Q. 47, the gap or defect, if any, in the evidence was cured by Kartick saying that the title deeds were lying with him as security for a mortgage. However insufficient the examination-in-chief was, the whole evidence of Kartick as it is now on record, taken with the pleading in the plaint, shows that the deposit of title deeds was made with the intention to create a security.
11. The above reasons given by the learned trial Judge for coming to the conclusion that there was no mortgage do not commend themselves to us. I have already shown that those reasons are neither sufficient nor sound to come to so drastic a conclusion which nullifies the mortgage.
12. There are many other circumstances which should be carefully weighed and considered in deciding the point, There is not only no denial by the heirs of Noder Chand and Gora Chand that Kartick told them that there was a mortgage by deposit or title deeds (Q. 54 -- Kartick) but also there are other cogent and compelling circumstances. The first outstanding circumstance is the absence of the document of title from the owners for such a Long period without any demand by them and this fact has been completely overlooked. It is unlikely in our view that an owner would allow his title deeds in respect of his properties to remain with somebody else for years together without making any claim for them unless there are good reasons for not demanding their return. That reason need not be invariably a reason of mortgage, but at least some reason has to be given to explain the absence of the documents of title from the hands of the owners. None has been given either by the owners themselves when they were alive or even subsequently by their heirs. Secondly, the witness Kartick Churn Mullick was a well-known and a respectable person of the community (Q. 60) and unless he is disbelieved on some good reason, I would prefer to accept his testimoney on questions of fact. He says that the original debtors, Noder Chand and Gora Chand, were doing business, that he advanced this money only to help them in their business, and that they were not well off and that they were suffering loss in their business and wanted time. In that state of facts and circumstances I see nothing unusual in the conduct of the mortgagee waiting for all this time to enforce his claim on the mortgage. He says in answer to Q. 101, 'I have already said that they were my relatives, they were making their efforts to pay me up and I was waiting just to give them a chance.' He, in fact, also says in answer to Q. 77 that he had really no risk and he believed Gora Chand's statement that he would give him the money by the sale of the property and Kartick himself would then be able to purchase the property. There are, therefore, good circumstances and reasons for delaying the enforcement of the mortgage and actual filing of the suit in the context of facts in the present case. So long as the period of limitation is not allowed to be crossed over, I see no reason why a person should lose his rights simply on the ground that a long time has lapsed although well within the period of limitation.
13. The error of the learned trial Judge lies in holding that a Court of Equity cannot proceed on the uncorroborated testimony of a claimant for the purpose of making liable the estate of a deceased person. That in my judgment is a wrong and erroneous deduction and inference from the cases which the learned trial Judge quoted. Neither Brett M. R. nor Sir Ashutosh Mookerjee laid down that proposition in the two cases on which the learned Judge relies, namely In re Garnett; Candy v. Macaulay, (1885) 31 Ch. D. 1 and Hiralal v. Rajkumar, 12 Cal LJ 470. The learned trial Judge says on this point :
'The doctrine which the learned Master of the Rolls referred to was to the effect that a Court of Equity would not proceed on the uncorroborated testimony of a litigant for the purpose of making liable the estate of a deceased person. The above passage from the judgment of Brett M. R. was quoted with approval by the late Sir Ashutosh Mookerjee in a judgment reported in 12 Cal LJ 470 at p. 475, the case being that of Hiralal v. Rajkumar,'
14. That proposition that a Court of Equity would not proceed on the uncorroborated testimony of a litigant for the purpose of making liable the estate of a deceased person does not appear to us to be a justified conclusion either on the authorities relied on or from other authorities. In fact, Brett, M. R. in In re Garnett; Gandy v. Macaulay at pp. 8 and 9 of the report of the case in (1885) 31 Ch. D. 1 says something entirely different. The learned Master of Rolls says as follows just immediately before the passage quoted by G. K. Mitter, J. :
'It was said that this release cannot be questioned because the person to which it was given is dead, and also that it cannot be questioned unless those who object and state certain facts are corroborated and it is said that that was a doctrine of the Court of Chancery. I do not assent to this argument; there is no such law. Are we to be told that a person whom everybody on earth would believe, who is produced as a witness before the Judge, who gives his evidence in such a way that anybody would be perfectly senseless who did not believe him, whose evidence the Judge, in fact, believes to be absolutely true, is, accordingly to a doctrine of the Court of Equity, not to be believed by the Judge because he is not corroborated? The proposition seems 'unreasonable the moment it is stated. There is no such law.'
15. Then follows the portion which the learned trial Judge has quoted. The law is not that the Court should not proceed on the uncorroborated testimony of a litigant for the purpose of making liable the estate of a deceased person, but the law as I understand is that when an attempt is made to charge a dead person in a matter, in which if he were alive he might have answered the charge, the Court will examine the evidence with great care and even with suspicion. But it is clearly laid down by Brett M. R. that the state of suspicion must not be allowed to prevail if in the end the truthfulness of the witness makes it perfectly clear and apparent. The whole law on the point was clearly laid down by Lord Russell C. J. in Rawlinson v. Scholes, (1898) 79 LT 250, that there is no rule that the Court must necessarily reject a claim against a deceased person's estate merely because it is supported only by the uncorroborated evidence of the claimant. Such uncorroborated evidence should be examined with care and even with suspicion, but if in the result it convinces the Court that the claim should he allowed, the Court should allow the claim. The true principle was laid down by Jessel M. R, in the decision of the English Court of Appeal In re Finch; Finch v. Finch, (1883) 23 Ch. D. 267 where it is said to be a rule of prudence and not a rule of law. Sir James Hannen expressed the same view in In re Hodgson; Beckett v. Ramsclale, (1885) 31 Ch. D. 177 at p. 183.
16. Now in this case no reason is given for disbelieving Kumar Kartick Churn Mullick's evidence on mortgage. In fact the learned trial Judge does not record any finding that he disbelieves the testimony of the mortgagee. He was a respectable witness well regarded by his community to which also the defendants belong, Our examination of the record in this appeal also convinces us that his evidence is unimpeachable and should be accepted. The doctrine of Brett, Master of the Rolls, therefore should be applied and what he said in the context of the facts that mere suspicion should not be allowed to prevail.
17. Similarly Sir Ashutosh Mookerjee emphasised the same point in 12 Cal LJ 470 at p. 476, quoting with approval Brett, M. R. :
'The burden of proof in the first instance in such a case lies upon the plaintiff, but it is not impossible that he may without any corroboration discharge the burden which lies upon km,'
18. Two other circumstances also appear to us to be relevant in disposing of this appeal. The deposit of title deeds was not an invention of Kartick Churn Mullick because such deposit, apart from being a fact, at the time of the trial was proved not only by the possession of the title deeds by the plaintiff but also by a document made as early as 6-10-1937 where Kartick Chandra Dutt signed a receipt acknowledging this document in the following terms :
'Received from Mr. R. K. Dey, Attorney-at-Law, the under mentioned only document in respect of No. 9/3, Arpuli Lane which has been deposited with K. C. Mullick by Noder Chand Dutt and Gota Chand Dutt and which we fire entitled to have by virtue of allotment to us of the Eastern portion of the said premises.
1. Original Conveyance elated 10-3-1911 from Durga Charan Be to Nolit Mohan Dutt.
Dated the 6th day of October 1937.
(Sd.) Kartic Chandra Dutt for self
and for Narayan Das Dutt.'
Now this receipt of so early a date as 6-10-1937 mentions the fact that this document of title was deposited with Kartick Churn Mullick by Noder Chand Dutt and Gora Chand Dutt. The date of this document was ante litem motam and was long prior to the date of the suit and also when both Noder Chand Dutt and Gora Chand Dutt were alive. The other circumstance is the response made by the heirs to the letter of demand made by the solicitors of Kartick Churn Mullick dated 20-4-1948 just before filing the suit. In this letter of demand by Kartick Chum Mullick's solicitors the facts were expressly and clearly stated including the fact of the mortgage by deposit of title deeds on 13-10-1923. I also stated that when the mortgage was originally effected the mortgagors' shares in both the properties, 9/3, Arpuli Lane and 81. Lower Circular Road, were mortgaged which, after partition amongst the co-owners, were now represented by the allotment to the mortgagors 81, Lower Circular Road in its entirety. The reply of the solicitors of the first two defendants in the first place asserts that these two defendants had no knowledge of the mortgage, but in the second place the solicitors want inspection of the paper etc., relating to the alleged mortgage and to arrange for inspection. Significantly enough, these two defendants never really proceeded to inspect the title deeds or even the repayments noted on the promissory note. There was also no denial in this reply that the interest of the original mortgagors shifted to their present entire allotment in 81, Lower Circular Road.
19. Mr. R. N. Mitter, learned counsel appearing for the respondents being the first two defendants has put forward three main argument. His first argument, of course, is in support of the Judgment that the mortgage has not been proved. We have already expressed our reasons and views why we consider that the mortgage has been proved in the facts of this case. It is no doubt true that mere deposit of title deeds is not enough to prove a mortgage and the intention that the title deeds should bo the security for the debt is the very essence of the transaction and that intention has also to be proved. The language of Section 58(f) of the Transfer of Property Act makes that proposition clear enough The whole question in each case is a question of fact whether the intention has been proved by evidence and circumstances. The evidence of Kumar Kartick Churn Mullick, which means not merely that part of his examination-in-chief where he spoke only of the deposit but also the other part in his cross-examination where he spoke of the intention to create a security, should he taken as a whole and unless he be disbelieved for good reasons, his evidence remains uncontradictecl. As the Privy Council in Heng Moh and Co. v. Lim Saw Yean, ILR 1 Hang 545: (AIR 1923 PC 87), said, the circumstances to explain possession of title deeds might be for and against a mortgage, and in that particular case the fact that the delivery of the deed was in course of partnership transaction, such delivery did not give the managing partner the rights of an equitable mortgagee. No such circumstances exist here. There is no reason why Kumar Kartick Churn Millick should hold and possess documents of title belonging to Noder Chand Dutt and Gora Chand Dutt. His own evidence is that he lent the money and took this security and these title deeds were deposited as such security. Apart from the fact that this evidence was not contradicted, there are no other circumstances which can possibly explain the possession of these title deeds with Kumar Kartick Churn Mullick except as a mortgagee. Mr. Mitter tried to urge that Kumar Kartick Churn Mullick being the leader of his community to which both Noder Chand and Gora Chand belonged might be taken to be a kind of a custodian for the documents of title belonging to the same community. Not a word was suggested to Kumar Kartick Churn Mullick when he gave evidence that he acted as such a custodian at all. It will be wrong for this Court to speculate on these possibilities for which no suggestion even is made or any evidence is led.
20. The second argument for the appellants was that the mortgagors mortgaged only their 1/20th share but under the partition award their interest was l/5th. Therefore, it is contended on behalf of the respondents that the mortgage, even if any, cannot he in respect of the entire premises No. 81/2, Lower Circular Road as claimed in the plaint but only one-fourth of it. This argument proceeds on the assumption, wholly unjustified, that what was mortgaged was only l/20th share of the mortgagors. In paragraph 2 of the plaint all that the plaintiff pleads is the deposit of the title deeds in respect of two premises No. 9/3. Arpuli Lane. Calcutta and No. 81, Lower Circular Road, Calcutta 'wherein they had an undivided l/20th share.' This is not a pleading to say that this l/20th share was less than the whole interest of the mortgagors in those two premises. Where the l/20th share was a correct figure or not or whether l/5th share should have been the correct figure or not is not the question. On a plain reading of the plaint it appears to us that the whole of the undivided share of the mortgagors was mortgaged. It was stated that they had an undivided l/20th share. Then the plaint proceeds to recite the fact that Noder Chand and Gora Chand were allotted under the partition premises No. 81/2 Lower Circular Road, Calcutta, and thereafter the plaint claims a declaration for charge on the entire premises. Mr. Mitter relies on the answer of Kumar Kartick Churn Mullick to Q. 41 where he said that the property to the extent of 1/20th share was mortgaged with him but he did not have under mortgage the entire 16 annas share. That answer is not admission with regard to the mortgagors' share in the undivided properties. It was given in answer to the question asking him why he parted with a portion of the title deeds which were kept with him as security. In order to appreciate that answer, it must be taken with the case which he had not only made in the plaint but also earlier in the examination-in-chief in answer to Q. 11 where he said that the share of those people in the properties was an undivided l/20th share. The fact, therefore, that they happened to have l/5th share under the partition award does not alter the fact that the mortgagors mortgaged their whole interest in the undivided property. Were it necessary, we will go further to hold that what was mortgaged was the whole share although the description of the amount of interest may have been incorrect in the sense that not being l/20th it was l/5th. But it is not necessary to go so far as that. The award under the partition is dated 16-7-1935 which was a long time after the mortgage which was on 13-10-1923. It may have been that the whole interest of the mortgagors was 1/20th in the undivided estate in 1923 and it may be that by some family incidents or otherwise their share increased to l/5th in 1935. But all that evidence is not there, and it will not be right to base any finding on those circumstances of possibilities unproved. It must also be recorded here that this point was never canvassed before the trial Judge. It is not a pure question of law but a mixed question of fact and law and unless the appellant brought the relevant facts of the actual share or interest of the mortgagor on record or put them in issue before trial he cannot be allowed to do so in appeal.
21. It is well settled today on the authoritiesthat mortgage of an undivided share will fasten upon,the entire divided share on partition. The leadingdecision on this point is that of the Privy Councilin Mohamed Afzal Khan v. Abdul Rahman, 59 IndApp 405: (AIR 1932 PC 235). It is an authority forthe proposition that, where one of two or more co-sharers mortgages his undivided share in some ofthe properties held jointly, the mortgagee takes thesecurity subject to the right of the other co-sharersto enforce a partition and thereby to convert whatwas an undivided share of the whole into a definedportion held in severally. If the mortgage, therefore,is followed by a partition and the mortgaged properties are allotted to a co-sharer or co-sharers otherthan the mortgagor, they take the allotted properties, in the absence of fraud, free from the mortgage, and the mortgagee can proceed only againstthe properties allotted to the mortgagor in substitution for his undivided share.
22. Mr. Roy Chowdhury, learned counsel for the appellants, has drawn our attention to a Lahore decision on the point in Amar Singh v. Bhagwan Das, AIR 1933 Lab 771, where Tek Chand, J. at p. 772 observed as follows :
'The proposition of law is firmly established that a mortgage of an undivided share which under a partition has been allotted to another co-sharer cannot, in the absence of fraud, be enforced by the mortgagee against the share originally mortgaged, the mortgagee's sole remedy being to proceed against the share which has been allotted to his mortgagor in lieu of the share mortgaged. In such a case 'the pledge assumes a new form' and the security is shifted, as a result of the partition, from the undivided share of the mortgagor on to the property which has fallen to his share. The leading case on the subject is Byjnath Lal v. Ramoodeen Chowdry, IInd App 100 (PC), where their Lordships of the Privy Council held that the mortgagees of the undivided share of one co-sharer, who has no privity of contract with the other co-sharers, would have no recourse against the lands allotted to such co-sharers, but must pursue their remedy against the lands allotted to the mortgagor, and, as against him, would have a charge on the whole of such lands.'
23. For these reasons, we think that the respondents' contention cannot succeed and that the mortgage in this case was, both on the facts and in law, in respect of the whole of the undivided share which the mortgagors had and which is now represented by the entire premises No. 81/2 Lower Circular Road, Calcutta.
24. The last point urged on behalf of the respondents was that we should apply the Bengal Money Lenders Act to grant relief in this case. The plaint, of course, docs not plead either in favour of or against the Bengal Money Lenders Act. The written statement of the first two respondents, however in paragraph 13 claim relief under the Bengal Money Lenders Act. No specific issue on the Bengal Money Lenders Act was raised before the learned trial Judge. Fortunately, however, some facts about this loan appear from the evidence of Kumar Kartick Churn Mullick. In answer to Q. 61 his evidence clearly is that he advanced this money 'only to help them in their business'. There was no further cross-examination to contradict this statement. That being so, this loan is clearly a commercial loan, outside the operation of the Bengal Money Lenders Act. In fact, even subsequently this witness, for instance in answer to Q. 68 and 72 had referred to the fact that the mortgagors had suffered loss in their business and were therefore not in a position to liquidate their debt. What appears, therefore, in the evidence of Kumar Kartick Churn Mullick is that this loan was given to the mortgagors only to help them in their business and that the delay in paying the debt was mostly due to the loss suffered by the mortgagors in their business. All this is uncontradicted by any evidence to the contrary. It is, therefore, not possible for us to hold on these materials in this Court of Appeal that this is a loan to which the Bengal Money Lenders Act applies.
25. For these reasons, we allow this appeal and set aside the judgment of the learned trial Judge. We make a decree for a declaration that the said premises No. 81/2, Lower Circular Road, Calcutta, be charged with the repayment of the plaintiff's claim of Rs. 44,325/- and costs herein. There will be also a decree in Form 5A of Appendix D of the First Schedule to the Code of Civil Procedure. This declaration and the decree in Form 5A will be as against all the defendants in the suit
26. Mr. Roy Chowdhury, learned counsel for the appellants, has said that having regard to the fact that the rule of Damduput gives him double the principal and having regard to the fact that interest has been claimed for a long number of years, his clients as Executors would willingly give, up any further claim for interest on judgment and decree. That fact may be recorded, so that the judgment and the decree should be drawn up without allowing for any interest on such judgment and decree. The appellants will get the costs in this appeal as well as the costs before the trial Judge from the appearing respondents. In respect of the defendants Nos. 3 to 7, there will be no order for costs against them in this appeal except that they will pay the costs of the appellants incurred at the trial Court.
27. I agree.