1. This suit was instituted by Joyram Sivjee and Gajanand Agarwalla against Rani Prayag Kumari Dabi, Rani Hem Kumari Debi, and Ashutosh Mukherjee. The plaint was admitted on 8th March 1934. In it the plaintiff stated inter alia that Raja Durga Prosad Singh of Jheria died in 1916 leaving three widows, namely the two female defendants and Rani Subhadra Kumari Debi, since deceased. That Joyram and the defendant Ashutosh had lent Rs. 1,25,000 at interest of 15 per cent. per annum to the three Ranis, namely, Rs. 75,000 on 27th April 1921, and the balance on different dates between that date and the month of July 1921. Out of the sum of Rs. 1,25,000 so lent, Joyram had advanced one lac, and Ashutosh Rs. 25,000. That payment was secured by a mortgage dated 27th April 1921 of certain properties which the Ranis claimed as widows and heiresses of their late husband but of which they had been dispossessed by artifice, and that by that mortgage it was stipulated that the loan should be repayable within one year from the final adjudication of the title of the Ranis to the property mortgaged, in Title Suit No. 48 of 1919 of the Court of the Subordinate Judge of 24-Pergannahs. That such title was finally adjudicated upon by the Judicial Committee on 7th April 1932 and by the High Court of Calcutta in its civil appellate jurisdiction by a decree made on 31st August 1933, the result of such decrees being that the Ranis were found not to be entitled to any of the mortgaged properties. That by a deed of assignment, Joyram had transferred a fourth part of the amount due to him including interest to Gajanand. That Ashutosh had refused to join Joyram and Gajanand in bringing this suit.
2. By their written statement filed on 16th July 1934 the two Rani defendants stated inter alia that they admitted execution of the mortgage, and that they had received a sum of Rs. 50,000 on 27th April 1921, of which Rs. 30,000 had been repaid to Joyram. But they denied receiving any further sum or sums, and that any part of the said sum had been advanced by Ashutosh, and they relied on the rule of damdupat. Further they said that the time for repayment according to the terms of the mortgage deed was one year from the date of the final disposal of Suit No. 48 of 1919, and that that suit was not finally disposed of until 14th May 1934, and that the present suit therefore was premature. Further they stated that by the aforesaid decrees they had been declared entitled to some of the properties covered by the mortgage. By his written statement filed on 11th June 1934, Ashutosh admitted the allegations contained in the plaint and claimed a decree for such sum as might be found due to him.
3. For some reason which has not been disclosed, Joyram did not proceed with the suit, and having failed to obey an order to file his affidavit of documents, he was transferred to the category of the defendants on or about 15th May 1935. On 1st May 1935, Ratna Sivjee was ordered to be added as a party defendant on the ground that he claimed as a member of a joint Mitakshara Hindu family to be entitled to a share in the money lent by Joyram. He filed his written statement on 5th June 1935. Consequent upon these two orders, the plaint was amended and re-verified by Gajanand in August 1935, and Ratna filed an additional written statement on 23rd September 1935. The suit same on for hearing on 30th July 1936, and the following issues were raised on behalf of the defendant Ranis and settled : (1) When was the Title Suit No. 48 of 1919 in the Court of the First Subordinate Judge at Alipore finally disposed of? Is the suit premature? (2) What was the amount advanced to the Ranis of Jharia on 27th April 1921? What sum, if any, was advanced to them on subsequent dates? Was any sum advanced by Joyram out of the joint family assets? (3) Can the suit proceed in the absence of the other members of the joint family of Joyram Sivjee and Ratna Sivjee if the advances by Joyram were made out of the joint family assets? (4) Was the alleged assignment of 17th October 1933 executed by the members of the joint family of Joyram Sivjee and Ratna Sivjee? Was any consideration paid therefor? Is it valid in the circumstances? (5) Is the suit maintainable if the assignment is invalid? (6) What sum, if any, has been repaid by the said Ranis? (7) What sum is now due and payable by the Rani defendants having regard to the rule of damdupat
4. An additional issue was raised and settled on behalf of Ratna. The first issue, if decided in favour of the Ranis, would be sufficient to dispose of the suit. Therefore it will be convenient to deal with it at once. The material words in the mortgage deed upon which this issue depends are:
we undertake to repay the principal money with interest within one year after the final disposal of the aforesaid cage,
namely, Suit No. 48 of 1919. The relevant dates and facts are as follows. Suit No. 48 of 1919 was decreed by the Subordinate Judge at Alipore on 3rd November 1921. He held that the Jharia estate was impartible and that Raja Shiva Prosad was entitled to the Raj. The Ranis were held to be entitled to certain jewellery, cash, bank deposits, and other properties which were self-acquired by the late Raja. Both sides appealed to the High Court: Prayag Kumari Debi v. Siva Prosad Singh Reported in AIR 1926 Cal 1. On 17th August 1925, the High Court allowed both the appeals in part and modified the decree. The suit was remitted to the Subordinate Judge for enquiry into various matters, and for disposal of the case according to law, having regard to the directions given: Prayag Kumari Debi v. Siva Prosad Singh Reported in AIR 1926 Cal 1. From this decision both sides appealed to the Privy Council: Bengal Shiba Prasad Singh v. Prayag Kumari Debi Reported in On 7th May 1927, the Subordinate Judge made a final decree incorporating the results of the enquiry directed by the High Court. Both sides appealed against this decree to the High Court: Appeal and cross-objection, Appeal No. Shivaprasad Singh v. Prayagkumari Debee Reported in : AIR1935Cal89 . On 7th April 1932 the Privy Council made an order allowing both appeals in part, modified the High Court decree, and remitted the case to the High Court for enquiry into and determination of various matters and to give effect to the declarations and directions made and given by the Privy Council: Shiba Prasad Singh v. Prayag Kumari Debi Reported in . On 11th August 1933, the High Court gave judgment and made a decree in Appeal .No. Shivaprasad Singh v. Prayagkumari Debee Reported in : AIR1935Cal89 which modified the decree of the Subordinate Judge and in which were included the results of the various enquiries and the determinations directed by the Privy Council. The abridged judgment of the Court occupies 76 pages of authorized report: Shivaprasad Singh v. Prayagkumari Debee Reported in AIR 1935 Cal 89 Both sides applied for leave to appeal against this decision to the Privy Council, the Raja in November 1933 and the Ranis in February 1934. On 24th February 1934 the suit was finally settled between the parties and a compromise petition filed in the Alipore Court, In this petition it was stated that:
As a result of the said Appeal No. 207 of 1927 and of the said cross appeal and on the footing of the judgment of the said Privy Council appeal dated 7th April 1932, the suit was finally disposed of by the Hon'ble High Court on 11th August 1983.
5. The Raja agreed to pay to the Ranis a further sum of Rs. 18,00,000 under the decree in Title Suit No. 48 of 1919, after deducting certain sums previously received and after deducting an amount given up in consideration of the settlement. The Ranis agreed to give up their claim for the balance payable under that decree. Both sides undertook to withdraw their leave applications to the Privy Council. On 12th March 1934 the leave applications were withdrawn. On 14th May 1934 certain outstanding matters were settled by compromise in the High Court. The present suit having been instituted on 8th March 1934, it is premature unless it can be established that Suit No. 48 of 1919 was finally disposed of before 8th March 1934. Consequently, it is premature unless that suit was finally disposed of by the judgment of the Privy Council given on 7th April 1332. In my opinion that suit was finally disposed of by means of the agreement of compromise made by the parties on 24th February 1934, and in any case not by the judgment of the Privy Council. The material date was not the date of the final adjudication of the title of the defendant Ranis, as alleged in the plaint, but the final disposal of the case. By their judgment, their Lordships of the Privy Council remitted the case to the High Court to inquire and determine inter alia whether the late Raja had incorporated in his impartible estate such minor properties (if any) as were acquired by him subsequent to the date of his will, and whether the Raja defendant was entitled to credit for certain amounts alleged to have been paid by him to the Ranis, and to determine any claim that might be made by the Ranis in respect of maintenance. The High Court had left over the question of maintenance for decision in a separate suit.
6. With regard to the question of expenses of funeral and Sradh ceremonies, their Lordships observed that this depended on questions of fact on which no evidence appeared to have been led. Consequently they were unable to entertain the claim at that stage. Until these matters had been determined, it cannot be said that the case had been finally disposed of. The question of the liability of the Raja to provide maintenance for the Ranis was not determined by the Privy Council but was left to be decided by the High Court. It was not a question merely of amount but of liability. Inter alia the High Court passed a decree for maintenance. Against these contentions it has been argued, though nowhere pleaded, on behalf of the-other defendants and the plaintiff, that Section 68 (1), T.P. Act, provides that a mortgagee has a right to sue for the mortgage money '(c) where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor,' and that the mortgagees were no longer bound by the provision in the deed postponing the date for repayment, because the mortgagors, as a term of the compromise, had given up their claim to part of the mortgaged property the title to which had been adjudicated in their favour by the decree of the Privy Council. The property thus referred to consisted of part of the immovable property mentioned in Item 1 of the schedule to the mortgage deed, and the money mentioned in Item 7 alleged to be lying on deposit in the Bank of Bengal.
7. With regard to the latter item it is admitted that none of this money was lying on deposit, as alleged, at the time when the deed was executed. It had already been withdrawn by the Raja defendant. With regard to Item 1, the title to none of this property had been adjudicated in favour of the mortgagors by the Privy Council. All that they got by the decree were certain tenancy rights over a small portion of this property. Moreover, by means of the compromise agreement, the Rani defendants obtained much more valuable rights, namely a claim to 18 lacs of rupees fully secured by a first charge upon the whole of Pergunnah Jharia. In these circumstances, it would be an abuse of language to describe the compromise as a wrongful act or default within the meaning of the section.
8. An alternative though inconsistent argument was sought to be raised upon the basis of Section 68 (1) (b), namely the contention that the whole of the security had been destroyed by the judgment of the Privy Council. Apart, however, from these considerations, in my opinion Section 68 has no application to the facts of this case, because the Ranis, as the mortgagees well knew, never were in possession of and never had more than a doubtful and disputed title to any of the property which they purported to mortgage and consequently the mortgagees were not deprived of any part of their security in consequence of any wrongful act or default of the mortgagors or otherwise. In fact there never was a mortgage within the definition of Section 58, T.P. Act. The result is that there must be judgment in favour of the Rani defendants, with costs against the plaintiff and against Ashutosh and Ratna, who are really co- plaintiffs in this suit, and against Joyram up to 15th May 1935 when he was transferred to the category of the defendants.