1. On the 8th August 1893, the defendant Babu Dasrathi Singh executed a simple mortgage in favour of the plaintiffs which contained an unconditional promise to pay the amount covered by the bond with interest on the 30th Bhado 1303, that is to say, the end of the Fusli year which would correspond with 1896. A certain share of a zemindari was hypothecated as collateral security. There was, however, no express covenant by the mortgagor to pay to the mortgagees any amount that should not be recovered by the sale of the mortgaged property. The mortgagees instituted a suit on the mortgage on the 26th February 1899, that is to say, within six years of the expiry of the stipulated period of payment. They made the mortgagor and his son parties to the suit. In it, they asked for a decree for sale of the mortgaged property and if the sale-proceeds of the mortgaged property were insufficient to cover the decretal amount, they asked that other properties of the mortgagor, Dasrathi Singh, might be made liable. A decree was passed for sale of the mortgaged property under Section 88 of the Transfer of Property Act. The mortgaged property was sold and the sale-proceeds were insufficient to satisfy the entire mortgage debt with interest and costs. The mortgagees then applied for an order under Section 90 of the Transfer of Property Act. The original mortgagor was then alive and the plaintiffs ought to have asked for an order under Section 90 against him alone as prayed for in the original plaint. They put in, however, in their petition the names of both the mortgagor and his son, the defendant No. 2. Either during the pendency of this proceeding or shortly after the decision of the first Court, the mortgagor died and the second defendant, his son, was the survivor under the Mitakshara Law by which the parties were governed.
2. The Subordinate Judge in whose Court the application under Section 90 was presented came to the conclusion that no decree under Section 90 of the Transfer of Property Act could be made, inasmuch as there was no express covenant in the mortgage for the mortgagor to pay the balance of the mortgage-debt, if the sale-proceeds were insufficient to satisfy the mortgage-debt. The application was accordingly dismissed. The mortgagees appealed from the order of the Subordinate Judge. The District Judge upheld the decision of the Subordinate Judge. In appeal before the District Judge, the only person who was respondent was the son, the second defendant.
3. A second appeal has been preferred to this Court from the decision of the learned District Judge.
4. The first point argued before us relates to the right of the mortgagees, to proceed personally against the mortgagor as provided for in Section 90 of the Transfer of Property Act. The lower Court relied for its decision against the mortgagees on two cases namely, Narottam Dass v. Sheo Pargash Singh 10 Cal. 740; L.R. 11 I.A. 83 and Bunseedhur v. Sujaat Ali 16 C. 540. The attention of the lower Court was also drawn to the decision in Musaheb Zaman Khan v. Inayat-ullah 14 A. 513, but the Court's attention was not drawn to other cases in this Court, namely, Kalee Pershad Singh Nundee v. Raye Kishoree Dossee 19 W.R. 281 and Parbati Charan Roy v. Gobinda Chandra Kundu 4 C.L.J. 246. In both the latter cases, the learned Judges had to construe documents similar to the document in the present case and they came to the conclusion that it was not necessary that there should be an express covenant to pay, if the mortgage property was not sufficient to satisfy the mortgage debt. The defendant's personal liability, the learned Judges held, arose as soon as the money was received and a promise made to pay the money. This is in accordance with the view which has been taken in England in similar cases, Mr. Justice Mookerjee who delivered the judgment in Parbati Charan Roy v. Gobinda Chandra Kundu 4 C.L.J. 246 discussed all the cases on the subject and distinguished it from the cases of Narottam Dass v. Sheo Pargash Singh 10 Cal. 740; L.R. 11 I.A. 83 and Bunseedhur v. Sujaat Ali 16 C.540. It is not necessary for us to enter at length into the discussion on the question as to whether, on the execution of a bond like the one in the present case, the personal liability of the mortgagor to pay arises or not. We may, instead of lengthening our judgment refer to Mr. Justice Mookerjee's elaborate judgment.
5. We have no doubt, both on principle and authority, that if a person promises to pay a certain sum of money with interest and hypothecates certain property as security without any covenant that he would be personally liable or without stating any mode of payment not even the mode indicated in the Transfer of Property Act as to sales of the mortgaged property, he is personally liable, and, if the right is not barred by limitation, a decree under Section 90 should be passed. The contention, therefore, of the respondent that no personal liability to pay arises on the covenant in the bond, cannot be allowed.
6. But, then, arises the question as to whether the present respondent is personally liable. He was not the mortgagor and, in the plaint, no relief was asked for against him except the sale of the mortgaged property. He was a member of a joint Mitakshara family with his father. The joint family property might be sold, if mortgaged by the father, as the debt was not for immoral purposes. There should, therefore, be no decree against the present respondent under Section 90 of the Transfer of Property Act, so far as he might be personally concerned; but there should be a decree against him for realization of the balance so far as he is in possession of assets left by his deceased father. The case would come within the ruling laid down by a full Bench of this Court in Amar Chandra Kundu v. Sebak Chand Chowdhury 34 C. 642 (F.B.); 11 C.W.N. 593. It might he necessary that an enquiry should be made in the execution proceedings as to how far the balance of the decretal money was recoverable from any property in the hands of the present respondent, i.e., whether the decree would be binding on the son on the ground of the debt having been a necessary debt or not tainted with immorality. The enquiry, if any be necessary, should be conducted under Section 244 of the Code of Civil Procedure. The respondent, however, as we have said, should not be made personally liable except as to such assets of his father as are liable under the Mitakshara law. The decree made by the lower Court is accordingly modified. The case should go back to that Court for dealing with it in the manner indicated above. We direct that each party do pay his or their own costs in this Court. The costs incurred by the mortgagees in the lower Court as well as subsequent costs would be added as costs in the cause.