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Tinkarhi Dasee Vs. Narendranath Mukherji and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal512
AppellantTinkarhi Dasee
RespondentNarendranath Mukherji and ors.
Cases ReferredNilakant Banerji v. Suresh Chandra
Excerpt:
- .....debi, in favour of the predecessors of the plaintiff, of their undivided l/3rd share in the property mortgaged. the property consists of no. 10, chandramohan sur's lane and 4-1, iswar mill's lane, now known as 4/1-a and 4/1-b.2. as regards the defendants radhagobinda goswami, mohangobinda goswami and suddheswar bhattacharya, the case has been already disposed of and the terms of the decree to be made so far as regards these parties have been consented to and recorded. the defendants ashalata basu and haridas mukherji claim, it appears a title to the second property mentioned, paramount to the mortgagor. and a position arises therefrom which is not free from difficulty. in her plaint the plaintiff states quite briefly in para. 13, that the defendant ashalata basu claims to be the.....
Judgment:

Buckland, J.

1. This is a suit to enforce a mortgage, dated 25th September 1912, executed by the defendants Narendranath Mukherji and Manindranath Mukherji and the deceased son of Surabala Debi, in favour of the predecessors of the plaintiff, of their undivided l/3rd share in the property mortgaged. The property consists of No. 10, Chandramohan Sur's Lane and 4-1, Iswar Mill's Lane, now known as 4/1-A and 4/1-B.

2. As regards the defendants Radhagobinda Goswami, Mohangobinda Goswami and Suddheswar Bhattacharya, the case has been already disposed of and the terms of the decree to be made so far as regards these parties have been consented to and recorded. The defendants Ashalata Basu and Haridas Mukherji claim, it appears a title to the second property mentioned, paramount to the mortgagor. and a position arises therefrom which is not free from difficulty. In her plaint the plaintiff states quite briefly in para. 13, that the defendant Ashalata Basu claims to be the owner of premises 4/1-B, Iswar Mill's Lane and the defendant Haridas Mukherji claims to be the owner of the premises 4/1-A, Iswar Mill's Lane, and it appears that, though they have not been read to me, these two defendants have filed written statements setting out their respective titles to the property. Through their counsel, they submit that they were not necessary parties to the suit and that no question of their title should be tried in these proceedings.

3. On behalf of the plaintiff, learned Counsel has expressed himself in effect as indifferent whether this question of title should or should not be tried in this suit provided that he does not have to pay these defendant's costs, but if there is any question of having to pay their costs in this suit, he submits that the Court is competent to and should try the issues that arise between the plaintiffs and the last two defendants. In support of this proposition, he has referred me to a judgment of the present Chief Justice and his learned predecessor in Bhuban Mohan v. Co-operative Hindusthan Bank Ltd. : AIR1925Cal973 where the question which now arises was considered and the view which Ran-kin, J., appears to have taken is that Order 34, Rule 1, which provides that all persons having an interest either in the mortgage security' or in the right of redemption shall be joined as parties to any suits relating to the mortgage, is in no way directed to the question whether any causes of action may be joined with a claim upon a mortgage, or if so in what circumstances. The learned Judge later passed on to a consideration of Order 1, Rule 3 and observed:

However painful it may be to old-fashioned equity lawyers to find causes of action lying together in one suit, if such a case comes under Order 1, Rule 3, it cannot be held to be incompetent.

4. The effect of this is that Order 1, Rule 3 is in no way limited by Order 34, Rule 1 and the learned Chief Justice observed that the question was not one of jurisdiction and at most the misjoinder was an irregularity or inconvenience. Rankin, J., however further observed:

I do not think that the objection as to misjoinder requires us to allow the present appeal. I must not, however be understood to throw doubt upon the need for a high degree of caution before permitting questions of paramount title to be investigated in a mortgage suit. Both as to competence and convenience there will gone-rally be much to consider.

5. The practical effect therefore of the decision is that though it lays down that questions of title may Do tried in a mortgage suit it furnishes no rules by which Courts may be guided as to the circumstances in which that should or should not be done. It does however appear from, the facts of that ease that unless the mortgagor's title to the property was established the mortgagee had no security whatever and it was therefore vital for the mortgagee to establish his mortgagor's right to charge the property in question. The problem, with which I am now concerned was presented in that case in its simplest form and considerations of convenience were of little or no account.

6. I have been referred to a judgment of their Lordships of the Privy Council, which though decided in 1885, I am told is the most recent, Nilakant Banerji v. Suresh Chandra [1885] 12 Cal. 414. There it appears that a representative of a purchaser of a mortgagor's interest in the mortgaged property claimed a paramount title and the learned Judge in the Court of first instance, finding a defence raised which was quite foreign to a mortgage suit, considered that he had no option, but to dismiss the defendant in question with costs and Lord Hobhouse who delivered the judgment of the Board observed:

It may be mentioned that there were several other purchasers of other portions of the mortgaged property who were made parties, and who also alleged paramount titles in themselves, so that the suit would have been multifarious and confused in the highest degree if it had gone on in that shape. They were all dismissed with costs.' . ...' It was the paramount claims that could not be conveniently tried in that suit. If Khagendra had accepted the position of a person, who was entitled to redeem, then so far from his claims not being conveniently tried in that suit, he was (apart from the doctrine of lis pendens) a necessary party to that suit, and his claims could not be conveniently or properly tried in any other suit, but not accepting that position, his claims were tried in that suit so far as concerned the question whether or no he was entitled to redeem, and it was held on his own showing that ho was not entitled to redeem, and on that ground he was dismissed.

7. It may be, but it has not been argued that at that time the rules of pleading were not what they are now an 1 that that may now be done which could not have been done at that time. I have not examined the matter from this standpoint nor does it appear to be necessary to do so, for the observations of the learned Judge appear to go to the root of the matter and to be based upon considerations not dealt with though recognized by the decision in the case previously cited. No general rule can be laid down. Questions of convenience must be considered in each case, but ordinarily, speaking for myself, I should be averse from allowing different causes of action, in only one of which different defendants may have any substantial interest, to be tried at the same time. So far as I can see, there are no reasons why questions of title should be determined at this stage as between these parties in this suit, nor has anyone, except so far as I have already stated contended that they must now be determined. What eventually will be sold will be the right, title and interest of the mortgagor in the mortgaged premises and persons who claim under a paramount title may file a suit for a declaratory decree or they can litigate hereafter with the auction purchaser, if they so desire.

8. The latter course appears to have been suggested from the Bar in Bhuban Mohan Ghose's case : AIR1925Cal973 and in relation to that Rankin, J., is reported to have said:

Whatever is right or wrong that undoubtedly would have been calamitous. The only possible way to ensure that the property should not be wasted from the point of view of the mortgagors and the mortgagees would have been to bring a declaratory suit * * * * to a conclusion before this mortgage interest was sold.

9. I do not know whether the learned Judge based these observations upon the facts of that particular case or whether he intended them to be applicable to all circumstances similar or analogous to those which he then had occasion to consider. I read thorn however as meaning nothing more than that a declaratory suit at an early stage is to be preferred to litigation between the parties claiming a paramount title and the auction-purchaser and not that in order to avoid that which he described as calamitous, questions of title should be allowed to be agitated in a suit upon a mortgage in regard to which he had already emphasized the need for caution.

10. For these reasons it appears to me that the defendants Ashalata Basu and Haridas Mukherji, who do not claim any right to redeem, should be dismissed from the suit and their costs should he paid by the plaintiffs. As against the Mukherji defendants, there will be the usual mortgage decree, and as regards the remaining three defendants the decree will incorporate the terms already recorded.


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