1. This is an appeal by the plaintiffs against a decision of the Subordinate Judge of Faridpore, dated the 12th May 1917. The suit was to recover a sum of Rs. 13,000 odd alleged by them to be due upon a mortgage for Rs. 5,000 dated the 1st July 1907.
2. The mortgage in suit is Exhibit 2 and it purports to be executed by Abdus Samad Kaji, Abdul Majid Kaji, Abdurab Kaji and by three ladies, Latifannessa, Mobarakannessa and Jahurannessa, The first three persons signed the document but Latifannessa, Mobarakannessa and Johurannessa signed and affixed their mark by the pen of Kalai Bepari, The mortgage recites a sum of Rs. 1,600 due to the mortgagee, Kailash Chandra Banik, and a present advance of Rs. 3,400 taken in cash. The interest is one per cent. per mensem and there is a provision for the payment of compound interest. The writer of the document appears to be one Kalai Bepari and there are some seven witnesses to the document itself, three of whom have been called before us.
3. The other witnesses have not been called, nor the writer of the document. The document was presented for registration on the 1st July 1907 at the Madaripur sub-registry office by Abdus Samad and execution was admitted before the Sub-Registrar by Samad, Majid and Abdurab who were personally known to the Sub-Registrar. Execution was also admitted by Latifannessa, Mobarakannessa and Jahurannessa, who were identified to the Sub Registrar by Israid Huq Chowdhuri. The memorandum of registration contains no reference to the passing of the consideration.
4. The plaintiffs' case is that the balance of the consideration money was paid two days after the registration, namely, on the 5th July 1907. The defence of all the defendants was that only Rs, 1,100 was paid and that in any case the mortgage should only stand for this amount in addition to the Rs. 1,600 previously due and they said that the balance of Rs. 2,300 was never in fact paid. The ladies denied the execution on the 1st July and in any case they stated that they did not understand the nature of the document which they were signing.
5. The learned Subordinate Judge has accepted the evidence of the defendants and has passed a decree against the male executants of the mortgage for a sum of Rs. 2,700 and he has held that the ladies are not bound by the mortgage and he has held that compound interest is in its nature penal and has accordingly disallowed the provision for compound interest. It remains for us to see whether the learned Subordinate Judge was justified upon the evidence and upon the circumstances in arriving at the conclusion at which he has arrived.
6. The plaintiff gave his version of the transaction and stated that Kalai Bepari wrote the bond and that the first three mortgagors signed their names and the last three, that is to say, the ladies touched the pen and their names were written by Kalai Bepari, He states that the whole party was in a boat and that the document was written and executed there, and that the women touched the pen in the presence of the persons who appeared as attesting witnesses to the document, and who he states were in the boat. He states that the writer wrote out the document and made everybody understand its contents and that the consideration of Rs. 3,400, that is to say, the balance due, was paid in the same boat but not on the same date. He says that on the date of execution the document could not be registered as it was late, that the next day was market day and that accordingly it was not registered until the 3rd July. Then he states that two days after the registration, on the 5th July, the same parties and the same witnesses met in the same boat and that Rs. 3,400 was paid then; and that he was told by the ladies to pay the entire consideration to the male executants, and he says that he paid the amount before them and that they counted the money and took it. He states in cross examination that on Friday, that is to say, the 5th July the three male executants went to his shop, told him that the document was ready, that is to say, it had been registered and that the consideration should be paid and that he thereupon paid the money, the money coming from the funds of his Madaripur shop.
7. The next witness is one of the attesting witnesses Hara Lal Saha. He confirms the story of the plaintiff with regard to the execution of the document and states that four days after the execution the consideration was paid, namely, Rs. 3,400 in the presence of the witnesses, the plaintiff paying the money to the mortgagors, it being counted by Samad and the ladies stating that Abdus Samad might take the money.
8. The next witness, who is also an attesting witness, Rameswar Banik, confirms the plaintiff's story and states that he saw the payment of the consideration two or three days after the execution when the Rs. 3,400 was paid. Then another attesting witness was called, Kali Charan Kundu, and he proved execution and payment of the consideration four days after the execution. The remaining witness on behalf of the plaintiff whose evidence calls for comment is his Gomasta, Dwarika Nath Dutta, who proves the books that were produced before the Subordinate Judge showing the entries with regard to the payment of the Rs. 3,400. He states that the cash balance on the 19th Asar was Rs. 2,289 and that on the 20th of that month Rs. 1,400 was brought by the plaintiff from the funds at home, and no cross-examination so far as we can see was directed to the genuineness of the books that were produced, the only comment being made that they had been produced after some delay.
9. On behalf of the defence three witnesses were called. The first was Abdus Samad, who stated that he and the two other male mortgagors alone executed the mortgage and not the three females but that he caused the three females to have the documents registered. He says that the Sub Registrar came to the boat in which the women were and asked him about the document, that he answered that the females were there and that thereupon the Sub Registrar went away without asking the females anything. He says that no money was paid on that day but that two days after he went to the plaintiff's shop who then paid Rs. 1,100, saying that the balance of the consideration would be paid later. He says that he went for this two or three days later, but that it was not paid and that it has-never been paid. Then he states that he caused the names of Abdul Gani, Abdul Majid and Abdul Kader, who appear as three of the attesting witnesses, to be written after the execution: and that the other attesting witnesses signed not at the time of the execution but later at the plaintiff's request. He states that the plaintiff only agreed to lend the money if the witness's mother and sisters joined in the bond and that it was for this reason their names were written, and that he told his sisters and his mother that the document was necessary for the purpose of certain settlement proceedings and that they understood it to be a document for that purpose. In cross examination he stated that he obtained the receipt from the Registration Office two or three days after the registration and that he made over the receipt to the plaintiff at the time the Rs. 1,100 was paid, and he says there was no talk with the plaintiff when the money would be paid as it is known to every debtor that it must be paid as soon as the receipt of the registry office would be delivered. He also states that he did not demand any paper to show that Rs. 2,300 remained due,
10. Latifannessa also gave evidence. She denied that any bond was executed by her, that she took any money or that she was liable. She stated that the bond in suit was not read over to her or to her stepmother and that the purport was not explained. She stated that she was taken with her sisters and her step-mother to Madaripur in a boat. She was told by Samad that she could not do business matters and, therefore, it was necessary for her to execute a Mukhtearnama. She said that she thought that it was a document of this nature which she executed and to which she affixed her thumb impression. In cross-examination she stated that she had property jointly with Samad and that the account of all credits and liabilities were with her brother.
11. The last witness is Mobarakannessa. She denied that she got any money on account of the bond, and she denied liability for the bond and stated that it was not read over to her and that it was not explained--I do not think that there is anything else in her evidence that calls for comment.
12. The learned Subordinate Judge has apparently not placed much reliance upon the evidence of the witnesses of either side, but in the conclusion at which he has arrived he has, I think, been influenced by the surrounding circumstances and by the conclusion to which he came with regard to the plaintiff's books. As to the surrounding circumstances he says that the plaintiff's story is improbable, namely, the three visits on three occasions in the boat, and he points out with some force that certainly so far as the ladies are concerned, it was much more probable that the transaction would have been concluded upon one occasion and that it would not be likely that they would be brought on three occasions, when the whole matter might have been concluded in one sitting He is also, I think, influenced in the conclusion that he has come to by the books produced by the plaintiff. So far as Exhibit 3 is concerned, which appears on the back of the same page as Exhibit 3 (a), he comes to the conclusion after much searching of heart and long deliberation that the page is interpolated and be arrives at this conclusion because he considers that looking at the writing it looks as if the writing had sunk and he, therefore, draws the conclusion that the page had been steeped in water to look old or taken from some other book and had been then put into the book itself. He also thinks that the page does not fit on to the next page, and he also draws the conclusion from the writing itself, which he thinks looks more like a writing of the present day than a writing at the time the entry is said to have been made.
13. We have had the opportunity of seeing this book and the entries Exhibit 3 and Exhibit 3 (a), and speaking for myself I am not prepared to draw the inference which the learned Subordinate Judge drew therefrom. This being so, we have got to consider whether the conclusion at which the learned Subordinate Judge arrived was right or wrong. Firstly one matter strikes me with great force, that Abdus Samad, who was an Honorary Magistrate and for a short time a schoolmaster, was not the sort of man who Would be likely to part with the registration receipt without the payment of the full consideration under the mortgage or at any rate without taking some acknowledgment that a further sum remained due on the mortgage, and it is also to my mind extremely unlikely if the story of Abdus Samad and the other male mortgagors is true that there would not have been some evidence in writing of a demand for the balance of the amount to be advanced under the mortgage.
14. So far as the ladies are concerned, there is no evidence at all on the record that they obtained any independent advice with regard to the transaction itself. They admittedly, I think I may say, joined in the mortgage for the purpose of assisting their brothers, being instigated so to do by them. They are illiterate and although I think there is no doubt, as the learned Subordinate Judge had found, that they must have known that the document was not a Mukhtearnama but a mortgage, I think in the absence of independent advice as to what they were doing and also having regard to the fact that they admittedly received none of the consideration money, we should not hold that they are bound by the mortgage itself. If the plaintiff had been desirous of securing himself so far as the ladies are concerned, be should have taken the elementary precaution in a case of pardanashin ladies of seeing that they had independent advice with regard to the transaction. So far, therefore, as the three ladies are concerned, we are not prepared to differ from the conclusion of the Subordinate Judge, and as against them the appeal stands dismissed.
15. So far as the male mortgagors are concerned, having regard to the view we take with regard to the books and to the matters to which I have already referred, namely, the absence of any demand while handing over the registration ticket, we are not prepared to draw the same conclusion from the surrounding circumstances that the learned Subordinate Judge has done, and we think upon the evidence that it has been established that the whole of the consideration money, namely, Rs. 3,400 was, in fact paid to the male mortgagors and that they are liable for this amount.
16. So far as the question of compound interest is concerned, it seems to us this cannot in any way be regarded as a penal provision having regard to the rate of interest that was contained in the document. In my view it would be making a new contract for the parties, which we are not justified in doing, to say that the provision with regard to compound interest should not prevail.
17. In the result, therefore, we decree the appeal so far as the male mortgagors are concerned and there will be a decree for the amount due under the mortgage, namely, the sum of Rs, 5,000 together with compound interest as provided in the mortgage against the defendants Nos. 1 to 6. The period of redemption is fixed at six months from this date.
18. The male mortgagors do not appear at the hearing of this appeal and the only persons who appear to contest are defendants Nos. 7 and 2.
19. The plaintiff is entitled to his costs against defendants Nos. 1 to 6 but he will pay the costs of the ladies, defendants Nos. 7 and 8.