1. In this case the appellant is the plaintiff in a mortgage suit in which the respondents are defendants being the sons of the purchaser of two of the mortgaged properties. They need not be distinguished from their father and have been referred to throughout this appeal as defendant No. 4.
2. The suit was dismissed in the lower Court on the grounds that, the attestation of the mortgage-deed has not been proved and that the mortgage was not true and bona fide.' Both points have been urged before us by the respondent. Whatever we may think of the first the second is that on which the respondent seeks, to establish his claim in the first place. We will, therefore, deal with it first.
3. The bond was executed on the 23rd August 1893 by Musammat Sharbat Koer as guardian of Balmakund Das. He was the son of Janki Das who died before 1883 when Musammat Sharbat Koer became guardian, and who carried on some kind of banking or money-lending business. This seems to have failed and Balmakund at all events has now no resources of his own. When it failed does not appear but at the date of the execution of the bond it seems that the family must have been in some need. The respondent, i.e., defendant No. 4 had filed his suit on the 17th September 1892 against Balmakund and his co-sharers for Rs. 76,000 odd due on a mortgage-deed, which shows that his mortgage security was not worth enforcing; and his connection with this suit is that after obtaining a money-decree in 1894 he brought two of the mortgaged properties to sale and purchased them himself. The deed being executed under these circumstances we will first consider whether it has been shown to be fraudulent. The ground for the allegation, that it was so, is that no consideration passed, which shows that it was executed merely to protect the property in dispute from the claims of other creditors and particularly we may suppose those of the respondent. The consideration alleged in the deed is two-fold, first a debt due to the mortgagee of Rs. 1,239-13-6 due on a hat-chitta, secondly an advance of Rs. 1,760-2-6 made by the mortgagee to provide for the expenses of certain litigation. As to the first, of these, the debt of Rs. 1,239, it is suggested that it had no existence. We cannot accept this view, though the story told to prove it is by no means free from suspicion. The story of how it arose is told by Musammat Sharbat in her petition to the Sub-Judge of Darbhanga for leave to execute the mortgage as a guardian. According to this one Aghar Ali had deposited money with the Firm of Balmakund's father, her husband, on the security of a hat-chitta. This passed to Ali Khan his adopted son, and in his favour she executed a hat-chitta for 1/3rd of the sum on the separation of Balmakund from his co-sharers. On the 27th March 1893, this Ali Khan transferred to the plaintiffs and as she could not raise the money when pressed she executed a new hat-chitta to them on the 27th March 1893, and at the time of the mortgage the amount due on this was Rs. 1,215-1-9. This is supported by a deed of gift dated the' 13th September 1887, by, Aghar Khan to. Ali Khan comprising among other things a hat-chitta for Rs. 2,500 by Balmakund's father, and by a deed of sale dated the 22nd March 1893 whereby Ali Jan transferred a chitta from Musammat Sharbat for Rs. 1,250-1-9 to the plaintiffs together with another from the other co-sharers at only Rs. 14 less than their full value. The existence of the original debt on which Musammat Sharbat's hat-chitta is based seems to be proved by Agha Khan's deed of gift, and there seems to be no reason to doubt the genuineness of Ali Khan's deed of sale to the plaintiffs though it is impossible to suppose that the consideration is correctly stated. On the other hand none of the hat-chitta have been produced and only the lamest possible excuses have been given for their non-production. Also when Musammat Sharbat renewed the hat-chitta to the plaintiffs any claim that could be made on it was statute-barred. These facts make the transactions leading up to the last hat-chitta suspicions and we have no doubt that the true facts, of the case have sot been disclosed, as after the collapse of the original debtor-Firm the debt on the original hat-chitta must have been worth very little and yet it is throughout treated as being practically undiminished. We cannot, however, treat the debt as extinguished, and at the time of the mortgage it may have been of advantage to the mortgagor to have, it put an end to; and as she was. acting as guardian and with the leave of Co art we cannot enquire into. the sufficiency of the consideration.
4. The advance of Rs. 1,760 odd is said to have been made to Balmakund a few days after the registration of the mortgage. The litigation, in respect of which it was, Was partly a suit against, his, uncle Janki Das of which we have no information at all; partly for a suit to. be brought against the Andoi Indigo, Concern for Bharna rent, which was eventually brought by Balmakund after he had attained his majority in 1898, when it was time-barred.
5. These facts lead us again to suppose that the true facts of the case have not been disclosed. But they do not lead us to the conclusion that no consideration passed; but rather to the conclusion that the consideration alleged in the deed was not the true one, but rather one put forward possibly to justify Musammat Sharbat in executing a mortgage which she ought not to have executed. Thismight give Balmakund's right to relief against Musammat Sharbat and possibly against the plaintiff, but cannot confer any such right on the respondent.
6. We mast, accordingly, hold that it has not been shown that no consideration passed, and we cannot hold the mortgage void.
7. This leads us to the other point relied on by the respondent namely that the mortgage deed was not attested by two witnesses as required by Section 59 of the Transfer of Property Act. The facts seems to be that the attesting witnesses were on one side of the pardah when the deed was executed and the executant on the other. Her son Balmakund seems to have taken the deed behind the pardah and to have come back with it signed. It has not been suggested that Musammat Sharbat did not in fact sign the deed. On these facts we cannot hold that the deed was not attested merely because the witnesses did not see the executant sign. The case seems very similar to that of the Harmongal Narain Singh v. Ganaur Singh 13 C.W.N. 40 : 3 Ind. Cas. 309 so far as the facts are disclosed in the judgment of Brett, J., except indeed that there was then specific evidence of a witness who saw the lady sign. Here there is none, but it is impossible to doubt that the attesting witnesses were satisfied by Balmakund that the deed was signed by his mother. On appeal the judgment of Brett, J., was upheld on the ground that there was no evidence that the attesting witnesses did not see the executant, but Brett J.'s judgment seems to have been passed on the assumption that they did not. Whatever may be the correct, view to be taken of this decision we must bold that there was due attestation in this case. To hold otherwise would be to upset, what we believe is a frequent practice in cases of the execution of deeds by pardanashin ladies and in many cases to make attestation of their signatures almost impossible.
8. On these findings the question arises of what relief is the plaintiff entitled to. The mortgage affects four properties. Of these Nos. 1 and 2,, were purchased by defendant No. 4 in execution of a money decree under Section 90 of the Transfer of Property Act some, time in 1899. Property No. 3 was sold for arrears of Government Revenue on the 24th March 1899, and the surplus sale proceeds were withdrawn by the mortgagor the defendant No. 1 on the 9th September 1899. Property No. 4 was the 'right to the profit of the Bharna. rent of mouzah Malikhpur, Pergannah Sarsia, due by the Shahpur Andoi Indigo Concern Pergannah Sarisa from l292 to 8 annas hist of 1300 F. amounting to Rs. 5,742-5-3 pies under Sudhbarna bonds dated 28th January 1885 and 25th July 1883 by Babu Bhup Narain Singh and others proprietors of the said mouzah.' It is not denied that Nos. 1 and 2 are liable to the mortgage-debt, if any exists as we have found it does, though it remains to be considered how far their liability extends. As to No. 3 it has not been suggested that it was sold free, of incumbrances; and it does not appear that the sale was due to the mortgagee's default. It follows, therefore, that on the payment of the proceeds the plaintiff had a charge on defendant No. l's share of them which amounted to Rs. 182-1 and had a right to sue for that amount both under Section 68 (b) of the Transfer of Property Act and because the period for re-payment under the mortgage had expired. The general prayer in the plaint covers a claim made in respect of the surplus sale proceeds, the period of limitation that applies to such a suit is 12 years from the date when the surplus proceeds were realised Kaniala Kant Sen v. Abul Barkat 27 C. 180 and Upendra Chandra Singh v. Mohri Lal Marwari 31 C. 745 and defendant No. 1 is, therefore, liable in respect of the sum of Rs. 182 with the mortgage rate of interest at 12 per cent, till the date of realization.
9. As regards property No. 4, the Shahpur Andoi Concern was the debtor of Bhup Narain Singh and others who mortgaged the debt to defendant No. 1 who again, as we have seen, mortgaged his rights as mortgagee to the plaintiff. The mortgage-deed of defendant No. 1 to the plaintiff contained provisions safe-guarding the mortgagee's right in case the mortgagor in any way realised the debt: but it did not contain any provision for what actually happened which was that the mortgagor sued for the debt after his claim was time-barred, and failed to recover anything; nor did it contain any express provision that the mortgagor should bring a suit at all, though as money was advanced to provide for the expenses of such a suit, an undertaking to this effect may be implied. Under these circumstances both defendant No. 1 as creditor, and the plaintiff as mortgagee were entitled to sue the debtor on the original debt. This depends on the principle laid down by Dr. Ghose in his work on Mortgages at p. 324 in reliance on the decision in Muthu Vijia Raghunatha Ramachandra Vacha Mahali Thurai v. Venkatachallam Chetti 20 M. 35 that a sub-mortgagee is entitled to sue the mortgagor of his mortgagor as well as his mortgagor, for if this is so where a mortgaged debt is mortgaged much more must it be so where the mortgage is of a simple debt. The question then arises what result follows from the plaintiff's omission to get in the debt in question, and allowing it to become time-barred. The obligation on him to get it in is clearly expressed by Mr. Coate in 'The Law of Mortgages' Chapter XIX, Section I(ii) where it is pointed out that a mortgagee taking an assignment of a debt by way of mortgage should be specially protected against the obligation which whether by analogy to a mortgagee in possession who is bound to account for what he might have received but for his own default, or to a creditor who, by giving time to the principal debtor, discharges the surety would otherwise attach to him to get in the debt in due course, under: penalty of being charged with the loss in case any arise through his default.
10. As the plaintiff entirely neglected this obligation he is, accordingly, chargeable with the loss that has occurred in his security; He cannot, of course, be liable, therefore, to defendant No. 1 who is more in default than he is; but must be held liable to other holders of the mortgagor's rights in the remainder of the mortgaged property, so far as the loss of the security is concerned They can, accordingly, call on him to make an apportionment; for the mortgagees cannot claim to throw the entire burden upon a portion of the mortgaged premises, because by reason of their own laches they have lost their remedy as against the remainder,' per Mookerjee, J.in Emam Ali v. Baij Nath Ram Sahu 3 C.L.J. 576 at p. 582 : 10 C.W.N. 551 : 33 C. 613. The result is that following the rules laid down in Section 82 of the Transfer of Property Act the four mortgaged properties must be valued at the date of the mortgage, the value of No. 4 being taken as stated in the mortgage-deed, namely Rs. 5,74-2-5-3, and the principal of Rs. 3,000 being distributed on the four properties according to the irrespective values, properties Nos. 1 and 2 will be liable for the amount of principal charged on them with interest at the bond-rate until realization. Defendant No. 1 will be liable for Rs. 183-1 his share of the sale proceeds of property No. 3, with interest from the date of his withdrawal of the same at the bond rate until realization. The portion of the debt chargeable on property No. 4 will be taken as discharged. The appeal is, accordingly, allowed, and the case is remanded to the lower Court in order that the apportionment may be made as provided above, and that a decree may be passed as directed. Costs in both Courts in proportion to the result will be given to the parties.