1. This is an appeal against the decree of the Subordinate Judge of Patna dismissing the plaintiff's suit for enforcing a mortgage-bond, dated the 2nd June 1905. The defendant No. 1 is the original mortgagor, defendants Nos. 2 to 4 are his minor sons and defendants Nos. 5 to 8 are puisne mortgagees. The original mortgagee is dead and his son has brought the present suit.
2. The suit was instituted on the 19th July 1910; it was decreed ex parte; that decree was set aside on the application of the infant defendants after the decree absolute was made. Then they filed a written statement on the 24th March 1912. The learned Subordinate Judge has dismissed the suit with costs. Against that the representative of the original mortgagee, who is now the plaintiff, has appealed.
3. There is no question that the mortgage in suit was executed by defendant No. 1 and was duly attested. With regard to the passing of the consideration-money, the learned Subordinate Judge seems to have made a confusion between two things, namely, the payment of money by the mortgagee to the mortgagor and the application of the money by the mortgagor for family and other purposes. The mortgage recites that the money was applied for the purpose of paying Rs. 3,000 due to a person of the name of Deo Nath Sahay, Rs. 1,000 to one Bissessur Singh and Rs. 2,000 for marriage expenses of the mortgagor's son, which is stated to have been 'coming on very soon.' There is not much documentary evidence in the case, in fact there is practically none, and the whole of the case has been determined mainly upon oral testimony. We have no doubt at all on the evidence that the consideration for the mortgage was duly paid to the mortgagor. A point is made that in the mortgage-deed the letters and numbers 'indicating the series of the currency notes have not been given. But one knows that in Nagri accounts frequently these letters and numbers are not given. There is no reason to doubt that the payment was made. No doubt there is a charge of collusion and fraud against the mortgagor and the original mortgagee, the nature of which, however, has never been clearly stated. Simply because the original mortgagee was a mukhtear, we are not prepared to hold that the transaction is fraudulent. We do not see any reason to doubt the attesting witness Bolaki, who was also examined when the case was heard ex parte. The only point urged was that he was also a mukhtear. Simply because a man is a mukhtear, his evidence cannot be rejected. There is no other reason suggested why he should be disbelieved. Munshi Lal, a mukhtear, has proved payment of the money to the mortgagor. It was argued that inasmuch as it was alleged that the mortgage-bond was executed in the Bar Library there was reason why the payment should not have been made there. Munshi Lal said that the payment was made when the Registration receipt was made over by the mortgagor to the mortgagee. That seems to us an acceptable explanation. The defendant No. 1 has not come to the witness-box and we must hold upon the positive evidence which has been given that the money was paid by the mortgagee as stated in the deed. Thakur Prosad, one of the attesting witnesses, is dead. Ram Prosad, the writer, was subpoenaed but could not be found at the time of the hearing. Harbans Sahay was also subpoenaed. He failed to appear on the date fixed and a short adjournment asked for to enable him to appear was disallowed. He is a Pleader and seeing that the case went over the day, the plaintiff's application might have been granted, but surely no adverse inference can be drawn because be was not examined. As regards the application of the money for the purposes mentioned in the mortgage, it appears that Deo Nath and Bissessur were subpoenaed by both sides to give evidence. They were not, however, examined. One of them was called upon to produce the bond in respect of the loan which is alleged to have been taken by the original mortgagor from him. That bond was not produced. We are not prepared upon the evidence, as it stands, to come to the conclusion that the money was not paid to these persons as recited in the document. The main ground of attack has been made that Rs. 2,000, which is stated to have been taken for the marriage, could not have been so used as the marriage had taken place in Asar 1311. The date depends upon oral testimony. The evidence on behalf of the plaintiff is that the marriage took place after the execution of the mortgage. The evidence on the other side is that the marriage took place before the deed. The petition of the mortgagor, Exhibit A, dated the 24th May 1904, for withdrawing some money from Court has been relied upon by the defendants, as it contains a statement that the mortgagor who was the applicant was unable to withdraw some money upon a payment order, dated the 13th April 1904, as he had to go away in consequence of 'the marriage of a relation going to take place.' That petition does not state that it was the marriage of his son. If it had it would have been some corroboration of the defendants' case that the son's marriage took place about that date. Nothing could have been easier for the defendants than to prove when the marriage took place. They are persons who keep accounts, and I should have expected them to produce evidence from their books to show when the marriage actually took place. They have not produced their accounts. It is not safe to depend upon oral evidence of the character placed before us for a positive finding about the date of the marriage. But it is unnecessary to go into the matter, because the learned Vakil for the appellant has contended that assuming that the plaintiff has failed to prove that the money was applied as stated in the mortgage-bond, the mortgage cannot be held inoperative as against the first mortgagor if he received consideration for the mortgage. He has relied upon the decision in the case of Kishun Pershad Choudhry v. Tipan Pershad Singh 34 C. 735 : 11 C.W.N. 613 : 5 C.L.J. 569. The correctness of the- decision in that case seems to have been accepted in the Full Bench case of Bidya Prosad Singh v. Bhupnarain Singh 29 Ind. Cas. 629 : 42 C. 1068 : 19 C.W.N. 849 : 21 C.L.J. 543. It is not shown that the money was taken for immoral purposes, the evidence of immorality being of the flimsiest character and in our opinion unreliable. Although it may be said that the application of the money as stated in the mortgage-deed has not been proved, we think that the appellant is justified in asking us to make a decree in the form it was made in the case of Kishun Pershad v. Tipan Pershad Singh 34 C. 735 : 11 C.W.N. 613 : 5 C.L.J. 569. That case differs from the decision in the case of Surja Prasad v. Golab Chand 27 C. 762. Having regard to the fact that it has practically been accepted by the Full Bench as good law on the subject, we see no reason why it should not be accepted and followed. The decree, therefore, will be in the form given in that case. The plaintiff will have the usual mortgage-decree for the sum due upon the mortgage security against the share of the father. The decree will also entitle him, if the sale of the shave and interest of the father be not sufficient to satisfy the debt, interest and costs, to realise the balance by sale of the minors' shares and interest in the ancestral property, so far as may be necessary to satisfy the amount due. A period of six months will be fixed in the decree for redemption. The appellant is entitled to his costs of this Court as well as of the lower Court as against defendants Nos. 1 to 4. The other defendants have not appeared before us.