Prinsep and Banerjee, JJ.
1. This appeal arises out of a suit brought by the appellant to recover khas possession of a mouza named Khandari, included in zemindari kismut Saharjora, after setting aside a putni obtained by defendant No. 1 and the predecessor of the remaining defendants, on the 14th Falgun 1285 (25th February 1879), from the former proprietor of the zemindari. The plaintiff in his plaint states that the late Dhurm Singh Baboo, by a bond dated the 8th Assar 1269 (21st June 1862), mortgaged the said kismut Saharjora and another property to one Gadadhar Banerjee, as security for a loan of Rs. 11,000; that on the 25th Cheyt 1278 (8th April 1872) be again executed another bond in favour of the representatives of the said Gadadhur Banerjee for Rs. 8,000 being partly the balance due on the previous bond, and partly a fresh loan on the mortgage of the same properties; that on the 22nd Pous 1289 (5th January 1879) Bunwari Lal Singh, a representative of Dhurm Singh, executed a third mortgage bond in favour of the said representatives of Gadadhur on the same security, for the debt covered by the last-mentioned bond and other debts; that in execution of the decree obtained on this third bond, the mortgaged properties were put up to sale and purchased by the plaintiff on the 8th Assar 1293 (21st June 1886); that while the said zemindari was thus under mortgage, Dhurm Singh mortgaged mouza Khandari and another mouza to the defendants, or their predecessors, by three instalment bonds, dated the 24th Pous 1278 (7th January 1872), and upon suits being brought on the basis of these instalment bonds, the said Bunwari Lal Singh, representative of Dhurm Singh, made an amicable settlement with the defendants or their predecessors on the 14th Falgun 1285 (25th February 1879), whereby he settled mouza Khandari in putni with them, the bonus for the putni, Rs. 9,000, going to satisfy the mortgage debt; and that as this putni was granted whilst mouza Khandari was under mortgage, the plaintiff as purchaser in execution of the mortgage decree is entitled to set it aside and recover khas possession.
2. The defendants in their written statement denied that any money on account of the bond of l269 (1862)was included in the bond of Cheyt 1278 (February 1872), and they urged that their bonds of Pous 1278 (January 1872) were on account of a debt secured by an earlier mortgage bond, dated 13th Assin 1267 (28th September 1860); that they were, therefore, entitled to priority over the mortgages set up by the plaintiff; and that, as they were no parties to the suit which resulted in the decree in execution of which the plaintiff made his purchase, they were not bound by the auction sale, and the plaintiff was not entitled to recover khas possession as against them.
3. Upon these pleadings the Court below framed several issues, and it has held that the mortgages set up by both parties are genuine and valid; that the defendants are entitled to priority by reason of the mortgage of 1267 (1860); and that the plaintiff is not entitled to recover khas possession. And it has further held that either as putnidars, or second mortgagees, the defendants were entitled to be made parties in the suit brought by the representatives of Gadadhar Banerjee; and that as they wore not made parties, they were not bound by the decree in that suit, or any proceedings that might have been taken in that suit, or by the sale in execution of that decree.
4. Against that decision the plaintiff has preferred this appeal; and it is contended on his behalf, first, that the Court below was wrong in holding that the mortgages of the 24th Pous 1278 (7th January 1872) were on account of debt secured by the prior mortgage of 1267 (1860); secondly, that the Court below was wrong in holding that the defendants were entitled to be made parties to the suit brought by the Banerjees; and thirdly, that the Court below ought in any case to have apportioned the mortgage debt over mouza Khandari, and given the plaintiff' a decree for possession on default of the defendants to pay off the amount so apportioned instead of dismissing the suit altogether.
5. If it had been necessary to decide the first point, then, notwithstanding certain defects in the evidence noticed by the learned Judge below, we should, on the whole, have agreed with him in the conclusion he has arrived at; but in the view we take of the case upon the two remaining points, we think it unnecessary and undesirable to dispose of this question in this suit. Upon the second point, we think the plaintiff must fail. At the date that the Banerjees brought their suit upon their mortgage (1885), the defendants had been for some years in possession of the mouza, which was part of the mortgaged premises, as putnidars; and their putni was created in satisfaction of mortgages which, if there had not been such satisfaction would, irrespective of the question of priority, have given them at least the position of second mortgagees. The Banerjees were, therefore, in our opinion, clearly bound to make the defendants parties to their suit, under Section 85* of the Transfer of Property Act. As putnidars of part of the property comprised in the mortgage, they clearly had an interest in such property, within the meaning of that section, and were entitled to have an opportunity of redeeming. This view is in accordance with the decisions of this Court in Kokil Singh v. Dull Chund 5 C.L.R. 243 and Kasimunnissa Bibee v. Nilratna Bose I.L.R. 8 Cal. 79. And if as putnidars they were not necessary parties, it would clearly be inequitable to hold that they were not entitled to fall back upon their position as second mortgagees, and claim the right to redeem the prior mortgage, if the putni, which went to satisfy the second mortgage, is to be held invalid as against the first mortgagee.
6. It was contended by the learned vakil for the appellant that the Banerjees had no notice of the defendants' interest as putnidars or second mortgagees at the date of their suit; and that they were therefore not bound to make the defendants parties to that suit. This argument, in oar opinion, has no force. The notice, required by Section 85 of the Transfer of Property Act need not be actual notice, but includes constructive notice, as defined in Section 3 : and seeing that the defendants had been in possession of the mouza in dispute for some years before the date of the suit of the Banerjees, there can be no room for doubt that they had such constructive notice.
7. Whether the defendants are prior mortgagees or not, they having obtained possession first are entitled to retain it as against the plaintiff in this suit, see Nanack Chand v. Teluckdye Koer I.L.R. 5 Cal. 265 : 4 C.L.R. 358, Dirgopal Lall v. Bolakee I.L.R. 5 Cal. 269, and Radha Pershad Misser v. Monohur Das I.L.R. 6 Cal. 317.
8. It now remains to consider the third point urged before us. We think it sufficient to say upon this point that the frame of the suit precludes the plaintiff from claiming the relief which he has asked us to give him now, and that the mere insertion of a general prayer clause in the plaint is not sufficient for the purpose. Having regard to the pleadings in the case, and to the terms of the several bonds that have been put in by the parties, we think the plaintiff has not placed before the Court sufficient materials to enable it to apportion the mortgage debt on the mouza in dispute. There is no sufficient evidence to satisfy us as to how much of the mortgage debt covered by the bond of 1269 remained unpaid on the date of the bond of 1278. Nor is there any clear evidence to show what the relative values of the mouza now in dispute and the remainder of the mortgaged properties are.
9. The result, then, is that appeal must be dismissed with costs.
* Parties to suits for foreclosure, sale and redemption.
[Section 85 : Subject to the provisions of the Code of Civil Procedure, Section 437, all persons having an interest in the property comprised in a mortgage must be joined as parties to any suit under this chapter relating to such mortgage : Provided that the plaintiff has notice of such interest.]