Asutosh Mookerjee, J.
1. The subject-matter of the litigation which has culminated in the first of these two appeals is a mortgage-bond executed on the 25th April 1904 by the ninth defendant Ichamayi Debi on behalf of her infant adopted son, the first defendant Krishnajiban Sanyal, in favour of one Sariat Ulla Mandal, a member of a Muhammadan family described in these proceedings as the Mandals of Biswanathpore in the District of Malda. The relationship of the different members of this family will appear from the following genealogical table:
| | |
Khasa, Dassi, Ratan,
| | |
| Gulzar, |
| Defdt. No. 6 |
| | | |
Sariatulla, Sabaktulla, Bepati. Shahimuddin.
| | | |
Misrabi, Khatyan, Kantu, |
Defend- Defend married |
ant No. 3. ant No. 2. Sakina, |
| | |
Din Mahomed, Kasirannessa, |
Pro Defend Pro. Defend- |
ant No. 4. ant No. 5. |
| | |
Masiuddin, Khabiruddiu, Matbatunessa,
Plaintiff. Pro. Defend- Pro. Defend-
ant No. 7 ant No. 8
Plaintiff No 3. Plaintiff No. 2.
2. The plaintiffs are the two sons and daughter of Sabaktulla, the brother of Sariatulla. They seek a declaration that although the mortgage-bond stands in the name of their uncle Sariatulla, the money advanced belonged to their father Sabaktulla, and they also pray for recovery of the mortgage money on this basis from the first defendant. The second, third, fourth and fifth defendants are the descendants of Sariatulla. The sixth defendant Gulzar is a first cousin of Sariatulla and Sabaktulla, and the position taken up by him is that the money belonged, neither to Sariatulla alone whose name appears as mortgagee on the fane of the 'deed, nor to Sabaktulla alone as asserted by the plaintiffs, but to all the members of a joint family, that is, to himself and his two cousins. The substantial dispute may consequently be expected, in these circumstances, to be restricted to the members of the Mandal family and not to affect the mortgagor; for it would be immaterial to the latter who was the real creditor. It transpires, however, that on the 5th May 1911, three years after the death of Sariatulla, the mortgagor took a release of a two-thirds share of the mortgaged properties from Misarbi and Khatija, two of the three heirs of Sariatulla, on the basis of an alleged payment of Rs. 3,600 to them in settlement of their claim as representatives of the mortgagee. The mortgagor (first defendant) is consequently driven to repudiate the claim of the plaintiffs. The litigation has thus resulted in a triangular contest, amongst the representatives of Sabaktulla (plaintiffs), Gulzar (the cousin of Sabaktulla), and the mortgagor. The two heirs of Sariatulla, who granted the release of the 5th May lull, have not entered appearance; they have left the mortgagor, as might be anticipated, to support their title. The infant representatives of Kantu, the third heir of Sariatulla (who was not a party to the deed of release), have instituted a separate suit to enforce their alleged right against the mortgagor; but though not parties to the deed of release and consequently not bound thereby, they have adopted its terms to determine the amount due in their share, and the two suits have by consent of parties been tried together on the same evidence. The Subordinate Judge has found that the mortgage money belonged to Sabaktulla alone and that neither Sariatulla nor Gulzar had any concern therewith. He has farther found that no money was paid for the release. He has accordingly granted a mortgage-decree to the heirs of Sabaktulla and has, as a necessary corollary, dismissed the suit instituted by the grandsons of Sariatulla. Against these decrees, two appeals have been preferred, namely, Appeal No. 35 of 1919 and Appeal No. 127 of 1919. In the former of these appeals, the mortgagor appellant has contended that the mortgage money belonged to Sariatulla, and that even if it belonged to Sabaktulla, his heirs are bound by the release granted by the representatives of the ostensible mortgagee. These positions have been controverted by the plaintiffs respondents, while Gulzar, as another respondent has sought to maintain his own position, contrary to the assertions of both the mortgagor and the plaintiffs. The mortgagor-appellant has also urged that the suit is bad for misjoinder of parties and causes of action.
3. We shall first consider the objection to the frame of the suit, which was taken in the Court below, and, in our opinion, rightly overruled by the Subordinate Judge. The relief sought by the plaintiffs may be analysed and classified as follows:
(a) declaration against the mortgagor that the plaintiffs were entitled to the mortgage dues, and consequential relief on the basis of such declaration;
(b) declaration against the heirs of Sariatulla that the plaintiffs, and not they as asserted by them, were entitled to the mortgage dues;
(c) declaration against Gulzar that the plaintiffs, and not he as asserted by him, were entitled to the mortgage dues.
4. Consequently, the case is covered by Order I, Rule 3 of the Civil Procedure Code, as explained in Ramendra Nath Ray v. Brojendra Nath Dass 41 Ind. Cas. 944 : 45 C. 111 : 27 C.L.J. 158 : 21 C.W.N. 794. The right to relief against the several sets of defendants arises out of the same transaction, and if separate suits were brought, the common question of fact would arise, whether the sum advanced to the mortgagor belonged, either wholly or partially, to the person named as mortgagee in the instrument. No doubt, the trial of the questions, which arise on the pleadings, has become complicated, but it is impossible to hold that that there is a legal objection to the frame of the suit. It is further worthy of note that the Trial Court was not asked to exercise its power to order separate trials of the causes of action against the different defendants under Order II, Rule 6, We hold accordingly that there is no substance in the contention that the suit was improperly framed.
5. The appeal has been elaborately argued before us, but the points which emerge for consideration really lie in a narrow compass and may be thus formulated:
(1) Was the release of the 5th May 1911 a genuine transaction? If the answer be in the affirmative, would gush a release operate against persons ether than the grantors, should any such turn out to be really interest ed in the mortgage money?
(2) Did the mortgage-money belong to Sariatulla alone, or to Sabaktulla alone, or to both of them jointly with Gulzar?
6. As regards the first question, we are of opinion that the release granted to the mortgagor on the 5th May 1911 by two of the three representatives of Sariatulla was not a genuine transaction. At that time, a considerable sum was due on the mortgage, and no intelligible theory has been propounded why the persons who executed the deed of release, assuming them to have been really interested in the mortgage money, should abandon a substantial portion of the claim. The evidence in support of the alleged payment of Rs. 3,600 cannot be deemed satisfactory. The mortgagor has not produced his accounts to corroborate his assertion, nor has he endavoured to flail for the accounts of the persons from whom he borrowed the money to enable him to make the payment. The second and third defendants, who are said to have executed the release, have cot been examined. Reajuddin, the husband of the third defendant who was present in Court, was also not examined. The release contains an indemnity Clause, and the grantors might have been expected to be ready and willing to tome forward and support it in order to avoid the risk of liability, if it should be repudiated. Besides this, it is clear that, at the time of the release, disputes had already broken out amongst the members of the Mandal family and the mortgagor and his brother were well aware of the fact; in such circumstances, it is extremely improbable that the mortgagor would make an actual payment to persons whose title was in serious controversy. On the whole, we see no reason to dissent from the conclusion of the Subordinate Judge that the release was a fictitious transaction and that no money passed thereunder. Consequently, the mortgagor cannot claim the protection extended to an innocent person who bona fide acts upon the ostensible title without notice of the real title: Ramcoomar Koondoo v. McQueen I.A. Sup. Vol. 40 at p. 43 : 11 B.L.R. 46 at p. 52 (P.C.) : 18 W.R. 166 : 3 P.C.J. 160 : 2 Suth. P.C.J. 656, Mahomed Mozuffer Hossein v. Kishori Mohun Roy 22 C. 909 : 22 I.A. 129 : 5 M.L.J. 101 : 6 Sar. P.C.J. 583 : 11 Ind. Dec. (N.S.) 602. It has been argued, not very strenuously, however, that the plaintiffs, if their case he true, are representatives of the real mortgagee, and as such are not competent to enforce the security, which, it has been maintained, can be done only by the nominal mortgagee or his representatives. There is, in our opinion, no solid foundation for this contention. No doubt, there was at one time a conflict of judicial opinion upon the question, whether a benamidar is competent to maintain a suit for enforcement of title to immoveable property. That controversy has now been set at rest by the decision of the Judicial Committee in Gur Narayan v. Sheo Lal Singh 49 Ind. Cas. 1 : 46 I.A. 1 : 46 C. 566 : 17 A.L.J. 66 : 36 M.L.J. 68 : 9 L.W. 335 : 23 C.W.N. 521 : 1 U.P.L.R. (P.C.) 1 : 12 Bur. L.T. 122 (P.C., where it was ruled that a benamidar, though he has no beneficial interest in the disputed property, is entitled to maintain an action in respect thereof even if the beneficial owner is not a party to it, In the case of a mortgage, this rule had been applied in this Court in a long series of decisions, which recongise the right of a nominal mortgagee to enforce the security; these will be found reviewed in Atrabannessa Bibi v. Safatullah Mia 31 Ind. Cas. 189 : 43 C. 504 : 22 C.L.J. 259. But whatever difficulty might have been felt at one time as to the right of the nominal owner to maintain the suit in his own name, there is manifestly no reason or principle which stands in the way of the institution of such a suit by the real owner (specially when the nominal owner also is joined as a party defendant), and the case before us is dearly of that description. We hold accordingly that the deed of release presents no effectual bar to the claim of the plaintiffs, if their title is otherwise established.
7. As regards the second question, three alternative cases have been presented for acceptance, by the different parties concerned, namely, first, that the mortgage money belonged to Sariatulla, Sabaktulla and Gulzar jointly as they were members of a joint family; secondly, that it belonged to Sariatulla alone; and thirdly, that it belonged to Sabaktulla alone. As regards the first alternative, which has been pressed upon the Court by Gulzar, it must be remembered that when the members of a Muhammadan family live in commensality, they do not form a joint family in the sense in which that expression is used with regard to Hindus, and in Muhammadan Law there is not, as there is in Hindu Law, any presumption that the acquisitions of the several members are made for the benefit of the family jointly: Hakim Khan v. Gool Khan 8 C. 826 : 10 C.L.R. 603 : 4 Ind. Dec. (N.S.) 533, Jaker Ali v. Raj Chunder Sen 8 C. 831n : 10 C.L.R. 469 : 4 Ind. Dec. (N.S.) 536, Abdool Adood v. Mahomed Makmil 10 C. 562 : 8 Ind. Jur. 564 : 5 Ind. Dec. (N.S.) 877 Suddurtonnessa v. Majada Khattoon 3 C. 694 : 2 C.L.R. 308 : 1 Ind. Dec. (N.S.) 1025. We cannot thus presme that because Sariatulla, Sabaktulla and Gulzar lived jointly and had joint transactions, they were the joint owners of the mortgage money in dispute. When we some to examine the evidence on the point, it becomes plain that the assertion of Gulzar cannot be deemed conclusive. In an affidavit sworn by him on the 28th August 1911, he stated distinctly that neither he nor Sariatulla Mandal nor anybody else had any concern with the sum secured by the mortgage which belonged to the representatives of Sabaktulla. His endeavour to explain away this specific assertion was fruitless. The theory that he had made a mistake was not plausible, while the hypothesis that he had yielded to the influence of the first plaintiff was neither put forward by himself nor even so mush as suggested in cross-examination to the plaintiff while in the witness-box. The documentary evidence brought forward by Gulzar is valueless. The account book for 1904 has not been filed, while the entries in other account-books are not only not beyond suspicion, bat actually look like interpolations. In these circumstances, the conclusion of the Subordinate Judge that Galzar had failed to establish the joint character of the money cannot be successfully impeached.
8. We are thus finally left with the two remaining alternatives and have to determine whether the money belonged to Sariatulla or Sabaktulla. The case for the plaintiffs is that the consideration for the bond was paid from the separate fund of Sabaktulla in the hands of Sariatulla, who had taken out Letters of Administration to the estate left by his brother. There is satisfactory evidence that the negotiations for the loan took place with the first plaintiff, but that the bond was not taken in the name of the plaintiffs, as two of them were minors at that time. In these circumstances, it is only natural that the bond should be taken in the name of the uncle of the plaintiffs, who was also the administrator to the estate inherited by them from their father. The Subordinate Judge has carefully analysed the oral evidence on the point, and after minute scrutiny of that evidence, we sea no reason to doubt that his conclusion is amply supported thereby. Besides oral testimony, which unquestionably preponderates in favour of the plaintiffs, there is internal evidenae furnished by the bond itself which cannot be altogether ignored. The bond, though executed in favour of Sariatulla, recites that the mortgagor executed the deed on receiving the consideration through Masiuddin, the nephew of Sariatulla (to whom the bond is addressed). No satisfactory explanation has been suggested for this recital; on the other hand, the evidence makes it clear that Sariatulla had a son Kantu, who looked after his business and who might be expected to hand over the money to the mortgagor, if it really belonged to his father. These circumstances must be taken along with the undoubted facts that the plaintiffs had a separate fund of their own in the hands of their uncle. We must accordingly affirm the finding of the Subordinate Judge that the money belonged to the children of Sabaktulla and not to Sariatulla. Here we may observe that it was suggested at one stage that the plaintiffs were precluded from, proving that the mortgage money belonged to tbeir father, as the District Judge authorised the guardian of the infant mortgagor to take a loan from Sariatulla. There is, however, no evidence that the sanction was so narrowly restricted in scope and that the District Judge had in view, for the protection of the minor, any considerations beyond the necessity for and the terms of the loan. Apart from this, it is plain that whether the money advanced by Sariatulla belonged to himself or tame out of the fund of his nephews in his hands as administrator to their estate, was immaterial to the borrower and could not plainly affect the validity of the mortgage truncation.
9. Our conclusion consequently is that the mortgage money belonged to the estate of Sabaktulla and that the release executed by two of the representatives of Sariatulla was not a genuine transaction. The inference follows that the suit by the heirs of Sabaktulla has been rightly decreed, while that by the grandchildren of Sariatulla has been properly dismissed. Both the appeals consequently fail and must be dismissed with costs. The costs in Appeal No. 35 of 1919 will be received only by the plaintiffs-respondents; and there will be no separate hearing fee in Appeal No. 127 of 1919.
10. I agree.