1. Bijay Lal Chakrakarty, respondent 1 and the principal defendant in the suit, became liable to the Bagherhat Loan Company Ltd. (hereafter called the company) for the sum of Rs. 12,891 odd. To secure the said sum he executed a mortgage in favour of the said company on 28th August 1908. The company thereafter fell into difficulties, with the result that a scheme was prepared under Section 153, Companies Act, and sanctioned j by the Court. By that scheme a body called the distribution board was formed and that body was invested with the power of distributing the assets of the company amongst its depositors and creditors in satisfaction of their dues. By a resolution of 30th September 1931 the said board fixed (after rateably reducing them) the dues of the several creditors who are the two original plaintiffs and the pro forma defendants 2 to 11 in this suit, and in pursuance of the said resolution the company transferred to those creditors, by several deeds of assignments, fractional shares in the said mortgage executed by Bijoylal in favour of the company in satisfaction of their dues so reduced. The deeds of assignment were executed on behalf of the company by a director, Kaliprosanna Biswas, who was authorised to execute the same by that resolution of the board. The whole of the mortgage was assigned between the said plaintiffs and pro forma defendants 2 to 11. On 16th July 1935 two of the assignees filed the suit to recover their share of the mortgage money after relinquishing a part of their claim. In that suit the other assignees were made pro forma defendants. Of those pro forma defendants, defendants 5, 7, 8, 11 and 13 became co-plaintiffs and their share in the mortgage money was added to the claim. The prayer was a prayer for sale of the whole of the mortgaged premises but court-fees were paid on the amount of the mortgage money payable in the shares of the original plaintiffs and the co-plaintiffs.
2. Many defences were taken by the mortgagor and they formed the subject-matter of five issues. All those issues were decided in favour of the plaintiffs except one, namely, issue 6 which is in the following terms : 'Is the suit maintainable in its present form and without payment of court-fee on the entire mortgage dues.' The learned Subordinate Judge answered that issue in the negative and dismissed the suit. In the appeal the plaintiffs challenge the correctness of the decision on this issue. The mortgagor-defendant, besides supporting the decision of the learned Subordinate Judge on issue 6, has made the attempt to support the decree under appeal by challenging the correctness of the Court's finding on issue 3, which is in these terms: ' Has there been any valid assignment of the bond dues in favour of the plaintiffs and co-plaintiffs by defendant 12 (Bagerhat Loan Company, Ltd.).' We may at once say that there are no materials on the record which would justify us in reversing the finding of the learned Subordinate Judge on issue 3. The contention of the advocate for the mortgagor is that the seal of the company was not properly affixed to the deeds of assignment. His argument proceeds solely on the supposition that Regn. 76 of Table A of Schedule l, Companies Act, is applicable to this company, and as the seal of the company had not been affixed in the presence of two directors and of the secretary of the company or in the presence of persons appointed by the directors as is required by that regulation, the deeds of assignment were not binding against the company. The whole basis of the argument is that Table A is applicable to this company. Section 266, Companies Act, however, provides that Table A would not apply unless it had been adopted by a special resolution. As the question was not raised by the mortgagor in this form in the lower Court, we cannot allow him to urge it before us, for, it depends upon a question of fact not put in issue in the lower Court, namely, whether there was a special resolution by which Table A was adopted. The question raised by the plaintiffs-appellants is therefore the only material question in the appeal.
3. The learned Subordinate Judge has given the following reason in support of his decision on issue 6. He says that a mortgage is indivisible. One consequence of that theory is that partial redemption is not allowable, except where the mortgage has been split up either by consent of the mortgagee and the mortgagor or by operation of law, as where the mortgagee acquires part of the equity of redemption. Another consequence of that theory, which according to the learned Subordinate Judge is a counterpart of the proposition that a mortgage cannot be redeemed in part, is that some of the mortgagees cannot foreclose or sell the mortgaged properties for their fractional share. There would have been considerable force in the reasonings of the learned Subordinate Judge, if the matter had been res integra, But there is a decision of the Judicial Committee of the Privy Council Sunitabala Devi v. Dhara Sundari Debi ('19) 6 A.I.R. 1919 P.C. 24, which has to be carefully examined. The report of that case in Sunitabala Devi v. Dhara Sundari Debi ('19) 6 A.I.R. 1919 P.C. 24 is fuller and more helpful for the determination of this point than the report in Sunitabala Devi v. Dhara Sundari Debi ('19) 6 A.I.R. 1919 P.C. 24. The facts of that case were as follows : Sarat Chandra Roy Chowdhury, the last full owner, left him surviving two widows, Dhara Sundari and Sarojini, and Sunitibala, a daughter by another wife. Just after his death, his widows propounded a will said to have been executed by him on 22nd November 1903, the date of his death, and applied for letters of administration with a copy of that will annexed. Sunitabala opposed the grant. The District Judge pronounced the will to be a forgery, and refused the grant. The widows filed an appeal against the decision of the District Judge. When that appeal was pending, the Administrator-General of Bengal as executor applied for probate of an earlier will said to have been executed by Sarat Chandra on 21st September 1892. The daughter got more under the earlier will, but very little under the terms of the later will, which practically gave the whole of the testator's estate to the widows. While these proceedings were pending, one in the appellate Court and the other in the Court of the District Judge, there was a compromise between the daughter and the widows. In consideration of the daughter promising to pay to each of the widows Rs. 80,000 the appeal was withdrawn by the widows, who agreed to the grant of probate of the first will. The compromise provided that if the daughter could not pay the money cash down, she would execute a mortgage in favour of the widows to secure the moneys she had agreed to pay to them. In pursuance of this agreement she executed a mortgage deed in their favour on 5th March 1907 by which she hypothecated some properties - moveable and immovable - to secure the payment of the aforesaid two sums of Rs. 80,000. In March 1909, Dhara Sundari alone instituted the suit to recover the sum of Rs. 80,000 promised to her together with interest. Sunitabala was the principal defendant. Sarojini, her co-widow, was also made a defendant. In her plaint she prayed for sale of a moiety share of the mortgaged premises in default of payment of Sunitabala of the sum due to her. One of the defences of Sunitabala was that the suit as framed was not maintainable. The Subordinate Judge who tried the suit overruled this defence, as also other defences, and passed a mortgage decree in the usual form in favour of Dhara Sundari. On an appeal by Sunitabala, this Court overruled her other defences, but upheld her contention that the suit as framed was not maintainable. The suit was not however dismissed on that ground, but an opportunity was given to Dhara Sundari to amend her plaint. She availed herself of that opportunity, and after the amendment of the plaint the case was remanded to the Court of first instance with certain directions. The amendment was in these terms:
If in the opinion of the Court the plaintiff is held to be not entitled to a decree on the footing of a mortgage for the principal sum of Rs. 80,000 then an usual mortgage decree may be passed in favour of the plaintiff and defendant 3 (Sarojini Debi) for the amount found due up to the period of grace to be fixed by the Court upon the basis of the entire mortgage money, that is, Rs. 1,60,000.
4. Sunitabala preferred an appeal to His Majesty in Council, and Dhara Sundari filed a cross appeal. The cross appeal raised the question as to whether the suit as originally framed was maintainable. The cross appeal, however, was not pressed. In the appeal Sunitabala contended that the amendment ought not to have been allowed and that even after the amendment the suit would not be maintainable at the instance of one of the mortgagees. Lord Buckmaster observed that there was one mortgage, and not two mortgages, one in favour of Dhara Sundari and the other in favour of Sorojini. He then observed that the proceedings were wrong in form, (that is to say, the original plaint was defective) but were capable of being amended so as to constitute a properly framed suit, and that it was not only within I the competence of the High Court to make an amendment, but it was their clear duty to do so. He observed that the amendment had not been properly worded, and made one point clear, and that was that where a mortgage is in favour of two or more mortgagees as tenants in common, one of them who is desirous of realising the mortgage property can sue by making his co-mortgagees parties defendants, and can ask for a proper mortgage decree, but there could not in such a suit be a decree for a sum of money in favour of the mortgagee defendants and against the mortgagor defendant. Lord Buckmaster, therefore, disapproved that part of the amendment allowed by the High Court which prayed for a mortgage decree in favour of both the plaintiff, Dhara, Sundari and defendant 3 Sorojini, the co-mortgagee, for the total sum of money due to them. As he held that the original plaint was defective in form, the effect of his judgment is that a co-mortgagee cannot as plaintiff pray for sale of a proportionate part of the mortgage security. This is Section 67, Clause (d), T.P. Act. The prayer must be for sale of the whole of the mortgaged premises. In the suit the account and enquiries must be directed in regard to the whole of the mortgage debt but the decree for payment of money must be limited to the plaintiff co-mortgagee's share only. The net result of this decision is that a co-mortgagee whose share in the mortgage money is defined in the mortgage instrument or is otherwise ascertainable can sue for his share only, and a suit for his share will be maintainable, provided some other conditions are fulfilled. Those conditions are: (1) that he must make the co-mortgagees defendants, (2) that he must ask for the usual mortgage decree, which must provide for all necessary accounts and payable in respect of the whole of the mortgage debt, that is to say, there must be a prayer for sale of the entire mortgage premises, if the mortgagor failed to pay into Court within the period of grace the amount that may be found due in respect of the entire mortgage debt.
5. The preliminary decree must specify the entire amount due on the mortgage as at the date of grace and not merely what is found due in the plaintiff's share at that date and direct the sale of the entire mortgaged premises in default of payment of the same. The consequence would be that if the mortgagee pays into Court the said sum - i.e. the total amount so found due - within the period of grace, the share found due to the plaintiff will be paid out to him, and the share of the co. mortgagee defendants kept in deposit. If there is default in paying that total sum, the final decree will be for sale of the whole of the mortgaged premises. At the execution stage either the whole of the mortgaged premises or so much thereof as may be necessary to satisfy the whole amount due on the mortgage must be put up to sale. The rights of the parties can be worked out thus. If the sale fetches a price equal to or greater than the said total amount, besides the costs of bringing the properties to sale, the dues of the plaintiff must be paid out to him. If the sale of the whole of the mortgaged premises be insufficient to cover that amount, the plaintiff would be paid pro rata from the sale proceeds, and he can obtain a decree under Order 34, Rule 6 for the balance of his dues, provided that he is otherwise entitled to such a decree. (The head note of the report in 46 I.A. 2721 in so far as it states that there can be no personal decree in favour of the co-mortgagee plaintiff appears to be wrong). As the sale would be under a decree for sale of the entire mortgaged premises, the purchaser at the court sale would get the property freed of the mortgage, and the rights of the co-mortgagee defendants would necessarily be transferred to the surplus sale proceeds. Whether such co-mortgagees would be able to withdraw their shares in the surplus sale proceeds by applications in that suit on payment of proper court-fees, or will have to institute suits for the purpose is a point on which there is a divergence of opinion (see for instance Lachmi Naraiu v. Baburam : AIR1935All391 and Bansiram Jashamal v. Gunnia Naga Aiyar ('30) 17 A.I.R. 1930 Mad. 985. On that question we do not express any opinion, as it is not necessary at this stage.
6. On the basis of the decision of the Judicial Committee of the Privy Council in Sunitabala Devi v. Dhara Sundari Debi ('19) 6 A.I.R. 1919 P.C. 24, we must, therefore, hold that the plaintiff's suit for recovery of his share in the mortgage debt is maintainable as they have joined the other co-mortgagees as defendants and have asked for the usual mort-gage decree and for sale of the entire mortgage premises. We accordingly set aside the decree of the lower Court and remand the case to that Court for passing the preliminary decree and if necessary, the final decree, on the lines indicated above. The Court must take account of the whole of the mortgage debt and find out the total dues as on the date of grace to be fixed by it. It must also find out the dues of the plaintiffs as at that date. In arriving at these figures the Court will take into account the amount 1 relinquished by the plaintiffs from their shares as also the question of the applicability of the Bengal Money-Lenders Act. To determine the last mentioned question, the parties would be at liberty to adduce evidence. If the Court finds the Bengal Money-Lenders Act to be applicable, it will take into account the relevant sections of that Act in determining the amounts payable and in passing the preliminary and final decrees. The matter of instalment would be left in that case to the decision of the lower Court. The result is that this appeal is allowed with costs of both Courts to the plaintiffs. The hearing fee of the appeal is assessed at 10 gold mohurs. Let the record be sent down without delay.