1. One Nadiar Chand Roy was the owner of six properties which are plots Nos. 1 to 6 of schedule to the plaint. He mortgaged plots Nos. 1 to 4 to one Upendra Dutt in 1904 and again in 1906, and in 1913 he made a gift of the said properties in favour of one Chintamani Roy. Upendra Dutt obtained a preliminary decree on the basis of the first mortgage against Chintamani and others; and thereafter on 15th November 1920 he also obtained a final decree against them; but in the meantime on 23rd September 1919 which was a date after the preliminary decree and before the final decree, Chintamani had died leaving his widow Nanibala and a minor son namely the plaintiff. On the second mortgage Upendra Dutt instituted a suit after Chintamani's death against the plaintiff and some other persons, impleading the plaintiff as a minor represented by his mother as his guardian. The mother did not appear in the suit and on that one Munshi Obeidur Rahim, a pleader of the Court was appointed Court guardian for the said minor. In April 1920 a preliminary decree was passed in the said suit, and thereafter in November 1920 a final decree was also passed therein. In pursuance of this final decree the mortgaged properties were put up to sale. Upendra purchased the said properties for Rs. 1,600 and having got his decree on the second mortgage satisfied attached the surplus sale-proceeds and credited the same in part satisfaction of his decree on the first mortgage. On 2nd March 1925 Upendra sold the properties to Jonab Ali Khan who made the purchase for himself and his brother Rayen Khan for Rs. 2,200. The plaintiff as a minor represented by his maternal uncle Behari Roy as his next friend, then commenced this suit on 27th July 1928.
2. He applied for permission to sue in forma pauperis but the application was disallowed. Court-fees were then paid on the plaint and the suit thereafter proceeded in the ordinary way. Of the six items of properties which were included in the plaintiff's claim in this suit, two namely plots Nos. 5 and 6 need no longer be considered because the Judge has held that the plaintiff had no cause of action as regards them and this conclusion has not been challenged before us. As regards the other four items, namely plots Nos. 1 to 4, put quite shortly the plaintiff claimed to recover possession of the properties on a declaration of his title thereto. The decrees and the sale by which he purported to have lost his title to the properties were attached under the following broad heads: (1) That the final decree on the first mortgage was a nullity as it had been passed with Chintamani as a party when he was dead; (2) that the decrees on the second mortgage were nullities inasmuch as the Court guardian was appointed in direct contravention of Order 32, Rule 3 (4) of the Code no notice having been served on the minor or on his mother with whom as his guardian he had been impleaded in the suit, or on his maternal uncle Behari Lal Roy through whom as his next friend the present suit has been instituted and who was really his natural guardian and with whom he was living at that time; (3) that the Court guardian did not communicate with the minor's mother or maternal uncle and neglected his duties as such by not entering any defence when as a matter of fact several substantial defences were open; (4) that the proceedings held in pursuance of the decree which culminated in the sale were vitiated by fraud, illegalities and material irregularities. The contesting defendant was defendant 2 who averred that there was no fraud, that every thing was legally done and all the proceedings were regularly taken and that the minor's maternal uncle with whom it is alleged that the minor was living at the relevant period, had full knowledge, at the time, of all that was happening about the suits and the other proceedings. The Subordinate Judge having decreed the suit, defendants 2 and 3 have preferred this appeal. It would be convenient to deal with the case under the four items of objection noted above on which the plaintiff rested his claim.
3. 1. It is conceded on behalf of the appellant that the final decree on first mortgage was passed at a date when Chinta mani was dead and without any substitution made of his heir in his place. That decree therefore was a nullity.
4. 2. In the plaint in the suit on the second mortgage Chintamani, as the original defendant 1 was described as resident of Bhaluka. On his death on 23rd September 1919, his name was struck out and the following endorsement was made in the place: 'Defendant 1 having died his heir son No. 1 Satis Chandra Roy, minor through his guardian his mother,Nani Mayrani,is made a party.' (After examining the evidence his lordship proceeded.) The plaintiff's contention was that Order 32, Rule 3 (4), Civil P. C., has been contravened and that contention had two branches: 1st that Nanibala was not the natural guardian but Behari Roy was: and 2nd that there was no service at Bhaluka as was alleged. That contention in our opinion, has failed in both its branches. The learned Judge has recorded as his conclusion that Upendra Dutt, in order to avoid the difficulties which would be raised if the suit was defended, intentionally gave a wrong address of the minor and caused a false return to be submitted by the peon. We are unable to hold that any such conclusion is justified.
5. 3. As regards neglect on the part of the Court guardian to obtain instructions, the materials, such as there are on the record and such as we have already referred to lead us to a very different conclusion from what the learned Judge has arrived at. We think the Court guardian's evidence, supported as it is by the contemporaneous statements made by him as contained in the two petitions to which we have already referred, must be accepted as true. The report no doubt is missing, but if either of the two parties are at all responsible therefor, no suspicion certainly can fall on the defendants; for it is obvious that the report must have been in consonance with what was stated in the petitions. If after taking the steps which the Court guardian alleged he took he was unable to get any instructions to defend the suit, it was not at all wrong on his part not to contest it. The substantial defences that are said to have been open to the minor to take are three: 1st that nothing was due to the mortgagee upon any of the two mortgages; 2nd that the stipulation to pay interest on the second mortgage was penal; and 3rd that separate and distinct suits for successive mortgages on the same properties were not maintainable. As regards the first of these defences, even now there is nothing reliable on which such a defence can be said to be true.
6. On the second point it may be pointed out that the rates of interest was 16frac1/2 per cent per annum compound with yearly rest. As regards the third ground, it would be sufficient to say that it is highly debatable whether in any Court subordinate to the Calcutta High Court such a suit could be held to be not maintainable in view of the decision in Nilu v. Asirbad Mandal 1921 Cal 321 to which the learned Judge has himself referred in his judgment. Moreover, we have perused the judgment in the suit on the second mortgage which apparently the learned Judge has not read. It appears defendant 2 in the suit, who was a puisne incumbrancer, contested the mortgagee's claim on all possible grounds and that at his instance various issues were framed: question of execution and attestation of the mortgage bond: question of consideration; question of interest; question of maintainability of the suit, etc. And it appears also that after evidence of several witnesses was recorded on behalf of the mortgagee all the issues were specifically and elaborately considered.
7. 4. There is no substance in this ground and the plaintiff's claim has not been pressed before us on its basis. In our opinion, therefore, the view which the learned Judge has taken of the second mortgage decree and the sale cannot be supported. The result is that this appeal should be allowed, and the decree of the Court below should be modified. The plaintiff should get a declaration that the decree in the suit on the first mortgage is void, and will be entitled to recover from defendant 1 the surplus sale proceds, namely Rs. 90-15-9 (which was appropriated by the mortgagee against that decree) with interest at the rate of 6 per cent per annum from the date of the sale namely 15th July 1921, until realisation. Defendant 2 who was the contesting defendant in the Court below will be entitled to his costs in that Court from the plaintiff; and in this Court the appellants ( i.e. defendants 2 and 3) will get their costs from the plaintiff, but the plaintiff will get his costs of the appeal from defendant 1, hearing fee being assessed at 5 gold mohurs.