1. This appeal arises out of a suit upon a mortgage bond said to have been executed by one Ashgar Sheikh deceased, the father of the defendant No. 1, and Rahatan Bibi, the defendant No. 2, in favour of one Hari Das Dalal.
2. The plaintiffs and the pro forma defendants were members of a joint Hindu family, the share of the plaintiffs Nos. 1 to 5 in the mortgage being 8 annas, that of the pro forma defendants Nos. 5 to 7, 4 annas; and the pro forma defendant Nos. 8 to 12. who were subsequently joined as plaintiffs had a 4 annas share.
3. The bond was in favour of Hari Das Dalal as representing the Dalal family.
4. The plaintiffs' case was that when the Dalal family separated, Sastiram Das Dalai, the father of the defendants Nos. 5 to 7, obtained possession of the bond in suit, and in collusion with the mortgagor defendants withheld the bond so that the plaintiffs might not be able to bring a suit upon it. Hence the plaintiffs brought the suit upon a certified copy of the' bond. The defendants' Nos. 3 and 4 were made parties as subsequent transferees of the property mortgaged.
5. The main defense was that there was a partition of the bonds belonging to the Dalal family among the members of the Dalal family, that the bond in suit fell into the share of Sastiram, the father of defendants Nos. 5 to 7 and that the bond Was satisfied by payments to the defendants Nos. 5 to 7, some remission being allowed.
6. The Court below decided in favour of the plaintiffs and gave a decree for a sum due under the bond proportionate to a 12-fthnas share, that being the share of the plaintiffs Nos. 1 to 5 and the pro forma defendants Nos. 8 to 12 who were subsequently joined as co-plaintiffs. The defendants Nos. 1 and 2 have appealed.
7. The issue as to the due execution and attestation of the bond has been found in favour of the plaintiffs by the Court below, and the finding has not been challenged in this Court. The main contentions raised in appeal are, first, that the suit cannot be maintained in the absence of the daughters of Ashgar Sheikh, secondly, that the findings that there was no partition of the bonds and that the bond in suit was not allotted to the share of the father of defendants Nos. 5 to 7 on partition are incorrect, and thirdly, that the Court below is wrong in holding that the discharge of the debt given by the said defendants is not binding upon the plaintiffs.
8. As regards the first contention the facts appear to be these Ashgar Sheikh left a son Abdul Hakim (the defendant No.' 1), his widow the defendant No. 2 and five daughters. No objection was taken by the defendant No. 1 on the ground of defect of parties, and it was only the defendant No. 2 who pleaded that the daughters were necessary parties. It appears ' that Ashgar died more than 12 years ago, and only the defendants Nos. 1 and 2 are in possession. The defendant No, 1 atone executed Kabuliyats in respect of properties inherited from Ashgar in favour of the landlords, and the mortgage bond in favour of the defendant No.. 3 (by which the same properties were mortgaged) was executed by him and the defendant No. 2 ' and not by the daughters. This course of dealing with the property by, and the possession of, the defendants Nos. 1 and 2 indicated that they were the sole owners of the property and it is not pleaded-that the daughters have any subsisting interest in the mortgaged property. They are all married and reside in their husbands' houses.
9. Under all these circumstances and in the absence of any evidence to show or even any allegation that the daughters have any subsisting right to the property mortgaged, we think that the suit can be maintained in the absence of the daughters. Of course, any interest which the daughters may have in the property will not be bound by the decree in this suit to which they are no parties.
10. As regards the partition of the bonds among the members of the Dalal family,' the defendants have adduced evidence to show that sometime in 1316 B. S. there was a partition, effected by Narendra Nath Roy and Gopendra Roy as arbitrators. Narendra Nath Roy says that the bond in ' suit fell to the share of Sastiram Dalal, that all the Ejmali bonds were brought out and a list thereof was prepared, that against the particular bonds the 'name of the co-sharers to whom they were allotted was entered in the list, and that these co-sharers again made their own lists from the general list. Gopendra Roy also deposes to the same effect. 'Sachinandan Dalal say's that three-fourths of the Ejmali bonds were partitioned between Magh and Chait 1309, and a partition deed of the bonds was drawn up according to the respective shares of the members; that the debtors themselves came and executed separate bonds in favour of the different co-sharers according to their shares, that is, each debtor executed three separate bonds, one in respect of 8 annas, and two in respect of 4 annas each. He further says that the mortgage bond in suit together with some others remained undivided, and were divided in Assar 1316 by the arbitrators Narendra Roy and Gopendra Boy, and that the bond in suit fell to the share of his father. He also deposes that two lists were prepared, one a general list, and a particular list of bonds allotted to each co-sharer, and that the disputed bond was included in their (the defendants') list. This - particular list, the witness said, was 'at home' and the reason given by him for its non-production is not a satisfactory one. The general list is said to have been kept with Hari Das Dalal. The plaintiff No. 1 Advaita Chandra Das Dalal denies that there was any partition of the bonds by the arbitrators or that any lists were prepared.
11. Sachinandan admits that in two mortgage suits, he filed written statements objecting that the bonds in those suits fell to the share of his father Sastiram Dalal and Banwari Lal Dalal, to the exclusion of Hari Das Dalal and others (the 8 annas co-sharers) who were parties to the suits, and that in spite of the objection the suits were decreed in favour of all the co-sharers including Hari Das Dalal. It also appears that in Suit No. 497 of 1911, and in six other bond suits, joint decrees were passed in favour of all the co-sharers. All these facts go to negative the story of the partition, and the allotment of separate bonds to each co-sharer as alleged by the defendants.
12. Two letters purporting to have been written by Sastiram Dalal to the defendant No. 1 were produced after his examination. These letters recited the fact of partition having been made. The Court below rightly comments upon the fact that they were not produced earlier, and points out that the plaintiffs were at a 'great disadvantage in meeting the new evidence produced in the midst of the trial'. The witnesses were before the learned Subordinate Judge and he has given good reasons for dis-crediting the evidence of Sachinandan, Narendra Roy and Gopendra Roy. He has believed the evidence of the plaintiff No. 1, who, he says, gave evidence in a straightforward manner, and has come to the conclusion that 'the alleged partition is a myth and that Sastiram Dalal came by the bond in suit when ill-feeling between the members of the family arose.' We see no sufficient reasons for differing from the Subordinate Judge in his appreciation of the evidence.
13. The next question for consideration relates to the plea of payment. The mortgage bond was executed on the 23rd Sravan 1309. It is recited in the band that the mortgage money Rs. 599 was taken for meeting the expenses of certain suits for rent which had been brought against the mortgagors (Rent Suits Nos. 127, 128 and 129 of 1902) and 'for purchasing certain lands and for other reasons.' The case for the defendants is that the lands were not purchased and out of the unexpended balance the mortgagors paid R3. 400 on account of principal and Rs. 25 on account of interest, total Rs. 425, in Aswin 1309, while the plaintiffs and the pro forma defendants were living jointly, and that the payment was endorsed on the bond by Ashgar Sheikh. The defendant No. 1 Abdul Hakim (son of Ashgar Sheikh) and one Kenatullah speak to the said payment, and endorsement of the payment by Ashgar on the back of the bond.
14. The defendant No. 1 Abdul Hakim says that about Rs. 42 only was paid on account of the rent decrees on the date on which the decrees ware passed, that a small amount was paid in 1310 or 1311 towards the decrees -and that for the balance due under the decrees he executed a Kistbandi in 1312 or 1313 (then says in 1313 or 1314). The register of suits, however, shows that about Rs. 717 was paid in satisfaction of the decrees in the three rent suits (mentioned in the mortgage-bond) and the satisfaction was noted in the register on the 13th November 1902 (corresponding to Kartick-Aghran 1309). This clearly shows that the statement of Abdul Hakim on the point is not true and that the Kistbandi, if any, executed by him in favour of the landlord in 1312 or 1313 (or 1313 or 1314) must have been for rents of a subsequent period. It also appears that they did purchase some property for a consideration of Rs. 199 on 25th Aswin 1309 (see Kobala Exhibit 3 in favour of Abdul Hakim). Abdul Hakim admits the purchase, but says that the purchase was with his wife's money. Under the circumstances we think the learned Subordinate Judge was right in holding that 'in all likelihood there was no money to pay Rs. 425 as alleged by the defence.' The learned Subordinate Judge also observes that the endorsement of payment, of Rs. 425 on the 27th Aswin 1309 appears to be a clear forgery, the handwriting being quite unlike that of Ashgar, as it appears on the bond, Exhibit A, admittedly signed by Ashgar Sheikh.' It is unnecessary to come to a definite finding as to the handwriting; it is enough to say that, in our opinion, the payment of Rs. 425 in Aswin 1309 is not satisfactorily proved. Two other payments have been pleaded by the defendants, viz., Rs. 11 on the 30th Chait 1316, and Rs. 850 on the 11th Chait 1321 respectively. It is said that the defendants Nos. 1 and 2 borrowed Rs. 1,999 from Narendra Nath Roy (one of the persons who is alleged to have acted as arbitrator at the partition of the mortgage bonds of the Dalals) for paying off the mortgage bond in suit, and arrears of rent due to the landlords, and that out of the amount so borrowed, Rs. 600 was paid to Sachinandan Dalal by which, together with a hand-note for Rs. 250 executed by the defendant No. 1 Abdul Hakim, in favour of Sachinandan, the mortgage bond in suit was satisfied. The debt due under the mortgage at that time even according to the defendants (after giving credit for Rs. 425 alleged to have been paid in Aswin 1309) was about Rs. 1,500 or Rs. 1,600, and it is alleged that Sachinandan agreed to accept only Rs. 850 in fall satisfaction of the debt. The payment of Rs. 850 and satisfaction of the debt are endorsed on the bond which was returned to the debtor and has been produced by the defendant No. 1, but the original title-deeds of the mortgaged properties have been produced by the plaintiffs. Sachinandan, however, admits the payment in full discharge of the debt. It is unnecessary, therefore, to discuss the evidence relating to the payments in discharge of the debt, but the learned Subordinate Judge points out that 'it is admitted on all hands that strained feelings have existed between the plaintiffs and the pro forma defendants Nos. 5 to 7. In view of the above fact it does not seem to be an act of good faith on the part of the defendant No. 1 to obtain discharge of a joint debt from Sachi alone, when the alleged partition of bonds did not take place in his presence.'
15. Then the question is whether one of joint mortgagees can give a valid discharge of the whole debt without the consent of his co-mortgagees. In the case of Barber Maran v. Ramana 20 M. 401 : 7 M.L.J. 269 : 7 Ind. Dec. (N.S.) 327 it was held that payment to one of the joint mortgagees, in the absence of fraud on the part of the mortgagor, will operate as a valid discharge. But the authority of that decision is considerably weakened by the recent decision of the Court of Chancery in Powell v. Brodhurst (1901) 2 Ch. 160 : 70 L.J.Ch. 587 : 84 L.T. 620 : 49 W.R. 532 : 17 T.L.R. 501 and it has been held in several oases in this Court that the payment to one of several joint creditors does not necessarily operate as a discharge of the debt in so far as the other creditors are concerned see Husainara Begum v. Bahmannessa Begum 8 Ind. Cas. 837 : 13 C.L.J. 3 at. p. 8 : 38 C. 842; Peary Lal Daw v. Madhoji Jiban 19 Ind. Cas. 865 : 17 C.L.J. 372 at. p. 375 and Harihar Pershad v. Bholi Pershad 6 C.L.J. 383 at pp. 394 : 395; see also Shrinivasdas Bavri v. Mehervai 39 Ind. Cas. 627 : 4l B. 300 : 32 M.L.J. 175 : 19 Bom.L.R. 151 : (1917) M.W.N. 258 : 21 M.L.T. 236 : 21 C.W.N. 558 : 25 C.L.J. 811 (P.C.). As pointed out in the Tagore Lectures for 1876 (4th Edition), page 452, 'in the absence of any evidence or circumstances which would justify a contrary inference, it will be presumed notwithstanding the form of the obligation that the debt is due to the creditors in severalty', and we think that in this case the Court below was right in holding that the discharge by Sachinandan operated as a valid discharge only in respect of the 4-annas share of the defendants Nos. 5 to 7.
16. A contention was raised by the learned Pleader for the appellant that the rate of interest stipulated to be paid in the mortgage was excessive, but no such question was raised in the written statement or in the issues, nor does it appear to have been raised in argument before the Court below. There is no evidence that it was not the usual rate of interest in that part of the country, and under the circumstances the 'Contention must be overruled.
17. In the result, the appeal fails and is dismissed with costs.