1. This appeal arises out of a suit for redemption. The ancestor of the plaintiff was one Ghottoo, and the family is shown in the following genealogical tree.
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Mnkteshur, Jambossur. Bisscssur. Bhubanessur. |
2. The mortgage sought to be redeemed was executed by Sidhessur, Muktessur, Jambessur, Brindaban and Kunjaban. It was a mortgage by conditional sale, and the term expired in April 1888. The next month the mortgagee instituted a suit for foreclosure, and in February 1889, he obtained delivery of possession. The present suit was instituted at the end of 19C7.
3. The learned Subordinate Judge has dismissed the suit, holding that the plaintiffs have no right to redeem, unless and until the foreclosure decree is set aside, and secondly, that the suit is barred by limitation. The plaintiffs appeal.
4. The plaintiffs were not parties to the former suit, and it appears to us that the first question to be decided is whether the mortgagee had notice of their interest within the meaning of Section 85 of the Transfer of Property Act, 1S82. This is a question of fact alone and after reading the evidence, we think that, although the point is not free from doubt, we should not be justified in overruling the finding of the learned Subordinate Judge, before whom the witnesses deposed. The burden of proof is, of course, entirely on the plaintiffs. The facts of the case that are not disputed are against the supposition that the mortgagee had notice. As has been pointed out by the learned Subordinate Judge, the mortgagee lived about 17 miles distant from the plaintiff's family, and the only connection between them was that the mortgagee's mother and the plaintiff's aunt had some kind of semi-religious friendship. The mortgagee was energetic in enforcing his rights and the learned Subordinate Judge considers that he would have made the plaintiffs parties to secure his own interest, if he had known of them, an inference that does not seem unreasonable. The evidence which the plaintiffs have adduced to prove that the mortgagee knew about their existence is to the effect that he attended a family ceremony shortly after the first plaintiff's birth. Now, apart from the improbability of the witnesses remembering who were the guests on a not very important occasion thirty years ago, almost all this evidence is open to the criticism that the witnesses have their own reasons for deposing adversely to the defendant, and are probably animated by ill-will towards him. The only two witnesses, of whom perhaps this should not be said, are Dassarath Gauda and Sapna Ganutia, The former is the local chaukidar and seems so unintelligent that his recollection of this particular incident is somewhat surprising. His answers to questions put to him in cross-examination to teat the quality of his memory are not satisfactory. Sapna lives 14 miles away and this was the only ceremony he ever attended in the plaintiffs' village. He cannot recollect any of the other guests. This evidence cannot but be regarded as very weak. That for the defence, perhaps,is not much stronger, though it may be said that the witnesses Parikhit Barik, Kuber Podhan,Simo Ganutia, Gadadhar Misser and Bhagirathi Bohidar hove not been cross-examined with the view of showing that they .are biased or partisan witnesses. On the whole, therefore, we agree with the learned Subordinate Judge that the plaintiffs have failed to discharge the burden of proving that the mortgagee had notice of their interests or existence when he sued for foreclosure.
5. The question then remains whether, when a mortgagee has obtained a foreclosure decree on a mortgage by conditional sale against the head of a Hindu family governed by the Mitahshara, a son who was not a party to the foreclosure decree can afterwards redeem, if he is unable to show that the mortgagee had notice of his interest at the time of the foreclosure suit. The point seems to be Well settled in Allahabad. The case of Ram Prasad v. Man Mohan 30 A. 256 : A.W.N. (1908) 106 : 5 A.L.J. 287 is, perhaps, somewhat in the plaintiffs' favour, though in that case the mortgagee had notice of the son's interest, but that case was dissented from in Sheo Dayal v. Jagar Nath 8 A.L. 922 : 12 Ind. Cas. 111 and held not to b? in accordance with the principles underlying the leading Full Bench case in Allahabad, Debi Singh v. Jia Ram 25 A 214. 'We may refer also to Lal Singh v. Pulandar Singh 28 A. 182 : 2 A.L.J. 647 : A.W.N. (1903) 248 in which, indeed, the mortgagee had notice of the son's interest, and to Jaddo Kuar v. Sheo Shankar Ram 7 A.L.J. 915 : 33 A. 71 : 7 Ind. Cas. 902; Balwant Singh v. Aman Singh 33 A. 7 : 7 Ind. Cas. 112 : 7 A.L.J. 852 and Kehri Singh v. Chunni Lal 33 A. 436 : 8 A.L.J. 216 : 9 Ind. Cas. 476. These cases show that in Allahabad the point is now well settled.
6. This precise point does not seem to have arisen in any case in this Province. The case of Bangsa Das v. Gena Lal Jha 14 C.L.J. 530 : 12 Ind. Cas. 155 was a suit in which redemption was sought, among other reliefs, by a puisne mortgagee, whose position, of course, would be wholly different from that of a Hindu son. The learned Judges distinguished the case of Ramtaran Goswami v. Rameswar Malia 11 C.W.N. 1078 : 6 C.L.J. 719 which is wholly against, the present plaintiffs, by observing that in that case the person not made a party to the former suit might be deemed to be sufficiently represented by the actual parties. It is evident that this observation would apply with still greater force to the present suit.
7. On general principles, it would seem that, if the father of a Hindu family can sell ancestral property to pay off debts and the sale cannot be questioned by the son if the debts are not immoral, the same result would naturally follow if the father mortgaged the property by conditional sale and then suffered the mortgage to be foreclosed. The father could not afterwards redeem, and if the son could not impugn the debt as immoral and was, therefore, bound by it, it would seem that he could be fully represented by. his father in the foreclosure proceedings, and would have no more right than his father to redeem subsequently. If the right to repudiate immoral debts is the sole distinction between a father's position and that of a son in attacking an alienation by the father, it would seem that where this right is not in question, the extinction of the father's right to redeem must carry with it the extinction of the son's right also.
8. We think, therefore, that the plaintiffs have no right to redeem in the present case and that the suit must fail. We need not, therefore, discuss the other questions that have been argued in the appeal.
9. The appeal is dismissed with costs.