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Bhoneshwar Ram and ors. Vs. Ram Khelawan Sahoo and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in5Ind.Cas.654
AppellantBhoneshwar Ram and ors.
RespondentRam Khelawan Sahoo and ors.
Cases ReferredManickyamoyee v. Boroda Prosad Mookerjee
mortgage - subject-matter distinct definition of--deeds relating to land, how to be described--sub-mortgagee, suit by--parties--original mortgagors not necessary parties--document--interpolation--interest at bond rate up to what period--civil procedure code (act v of 1908), order xli, rule 20--adding respondent--interested in the result of appeal--cross-objection--limitation. - .....came to a correct conclusion in holding that this contract was not a farzi contract. there is a cross-objection by the plaintiffs on two main grounds: (1) that the court below should have held that the family of the defendants was a joint family and mathura and rameswar having benefited by the loan their shares should not have been exonerated, (2) that interest should have been allowed at the bond rate up to realization or at least up to the date fixed for re-payment by the court below.6. there is no difficulty about the second point and it is admitted that according to the latest pronouncement of the privy council in sundar koer v. rai sham krishen 34 c. 150 : 4 a.l.j. 109 : 11 c.w.n. 249 : 5 c.l.j. 106 : 17 m.l.j. 43 : 9 bom. l.r. 304 : 2 m.l.t. 75, the plaintiffs are entitled to.....

1. The case out of which this appeal arises is a suit on a mortgage, dated the 17th June 1901, whereby the defendants-appellants or their representatives pledged a quantity of kobalas and rehan deeds for a loan of Rs. 19,501. The suit has been decreed by the lower Court against all the appellants exonerating the shares of defendants Nos. 5 and 10, the widows of cousins who are alleged to have been co-sharers in the property but who are not parties to the mortgage-deed. Various points have been raised before us, the first of which is that the subject-matter of the mortgage is too indefinite for the document being capable registration under Section 21 of the Registration Act, and that as registration was necessary the document cannot be admitted on the record as a mortgage. As regards this, cases have been quoted before us Co prove what cannot be doubted that the mortgage must define its subject-matter with distinctness. In the present case the mortgaged property-consists with one exception of deeds relating to land. The deeds are sufficiently described by setting out the sums of money with which they are concerned, the dates of execution and the names of the persons bound by them. These items of properties are, therefore, described with sufficient distinctness to make the document capable of registration. There is the one item, the khund, which is the subject-matter of the mortgage in which the boundaries are set out in the usual way. This we will consider later. But we consider that the point about distinctness in the mortgage-bond is one that cannot be sustained.

2. The next point taken is that the mortgagors of properties referred to in the bonds we have mentioned are no parties to the suit, and it is contended that for that reason the suit is improperly framed. Authorities have been quoted before us to show that a sub-mortgagee, which is the character of the present plaintiff, can join the original mortgagors. We have been referred to the cases in Muthu Vijia Raghunatha v. Venkatachallam Chetty 20 M. 35; (Shephard on Mortgages, p. 413), Narayan Vithal Maval v. Ganoji 15 B. 692; Ganga Prasad v. Chunni Lal 18 A. 113; Ram Shankar Lal v. Ganesh Parshad 29 A. 385 at p. 398 : 4 A.L.J. 273 : A.W.N. (1907) 97 : 2 M.L.T. 248. No authority, however, has been produced to show that it is necessary for a sub-mortgagee to join the original mortgagor when suing the mortgagee and on principle there is no reason why he should not have his rights against the mortgagee settled without any reference to the original mortgagor. It may very well be that a suit in which the mortgagor is joined is better adapted than the present one for deciding the rights of all possible parties, but as the mortgagor cannot, in any way, be prejudiced by the present suit, we cannot see any reason for holding that it is otherwise than properly framed.

3. We are next confronted with the contention that this deed is invalid because an interpolation was made in it by or on behalf of the plaintiffs. After 45 bonds and other documents have been mentioned we find the mortgage of one khund which, as we have said, is properly described by boundaries. This it is alleged is an interpolation. Looking to the contents of the mortgage we are inclined to think it suspicious that this khund should be mentioned with the documents. The oral evidence on the two sides on the point is conflicting and we do not attach much weight to it but what we do consider of importance is that this bond was presented for execution by one of the appellants. We think it unlikely that he would have presented this bond with an improper interpolation in it. On looking at the bond we have no doubt that this reference to the khund existed at the time of registration. It is not necessary for us to decide how the reference to the khund found place in the mortgage, but it is not unlikely that objection was taken to the want of description of any of the properties affected by the deeds and that the khund was inserted in order that in one case at all events there might be sufficient distinctness of premises described to justify registration. But the document with this addition was admitted by all the executants before the Registrar. In view of these facts we cannot consider that the reference to the khund although it may be strictly speaking an interpolation can be such interpolation as to avoid the bond.

4. We next come to what is the real point in this case, which is that the appellants allege that the bond was farzi from the beginning, and that no consideration ever passed or was intended to pass to them under the bond. The case which they allege is that they were carrying on business in Shahabad and had dealings with Mahajans living in Rajputana and other distant parts of the country, that finding that their affairs were getting involved they executed this mortgage in order to defeat the claims of their more distant creditors and that the bond was accordingly intended merely as a Shield against any claim made on their behalf. The evidence on which they ask us to support this case is to be found in such accounts as have been produced by the plaintiffs combined with the evidence in the case. It is alleged that these will show that the consideration in the bond is a pretence. It is admitted that the sum of Rs. 8,525 was advanced. But there are two other sums, one of Rs. 4,800 which is stated in the bond to have been taken in cash in order to start the business, and the other Rs. 6,176 which is stated to have been given to pay off the debt due to the ejmali firm of which the plaintiffs were members. There is evidence on behalf of the plaintiffs which we cannot see much reason for discrediting to show that Rs. 4,800 were paid in one way or the other. As regards Rs. 6.176 we have before us various documents which show that this sum is charged to the appellants in the books of the plaintiffs on different occasions. One of these occasions it is proved was two years after the date of the mortgage. This may give rise to suspicion and shows that the transaction was more complicated than it appears on the face of the mortgage. But we cannot for that reason alone hold that the statement of the consideration is a mere pretence and that no consideration of this kind was given at all. As we have said we have documents put before us by the plaintiffs, but they are of such a character that it is impossible to follow the course of dealings between the plaintiffs and the defendants, and it was not necessary for the proof of the plaintiffs' case that any such account should be given. On the other hand we have not evidence from the defendants which in a case like this we should expect to have. Their case is that at the time of the mortgage they were heavily indebted to the firms we have mentioned carrying on business in Rajputana, but they have not produced any evidence at all to show that this was in fact so. They have also not produced any evidence to show that they were embarrassed at the time or had need to apply for the protection. They are in fact setting up a fraudulent transaction on their part and in order to prove such a transaction they ought to give a far more cogent proof than has been produced in the case. It is very difficult to see how the plaintiff comes into connection with this case unless he was a creditor. The accounts before us show that there were dealings between the plaintiff ejmali firm and the defendants, and the mortgage-bond in question is one which they would be very likely to insist on if they considered that the defendants' firms were becoming involved, as it is the kind of security which the creditors are apt to seek in such a case. On the other hand there appears no reason at all why they should give leave to the defendants to use their name for a benami transaction.

5. Under these circumstances we consider that the lower Court came to a correct conclusion in holding that this contract was not a farzi contract. There is a cross-objection by the plaintiffs on two main grounds: (1) that the Court below should have held that the family of the defendants was a joint family and Mathura and Rameswar having benefited by the loan their shares should not have been exonerated, (2) that interest should have been allowed at the bond rate up to realization or at least up to the date fixed for re-payment by the Court below.

6. There is no difficulty about the second point and it is admitted that according to the latest pronouncement of the Privy Council in Sundar Koer v. Rai Sham Krishen 34 C. 150 : 4 A.L.J. 109 : 11 C.W.N. 249 : 5 C.L.J. 106 : 17 M.L.J. 43 : 9 Bom. L.R. 304 : 2 M.L.T. 75, the plaintiffs are entitled to interest at the bond rate up to the date fixed in the decree for payment and we give 6 per cent, per annum thereafter until realization and the decree of the lower Court will be modified to that extent.

7. As regards the first point raised in the cross-objection, however, there is some difficulty. Mathura Prasad and Rameswar were not parties to the bond in suit and decree was asked for against their widows defendants Nos. 5 and 10 on the ground that the family was joint and they had been benefited by the loan. The defendants Nos. 5 and 10 opposed the suit on the ground that their husbands were separate and were not on any account liable. The lower Court held that the plaintiffs had failed to show how Mathura Prasad and Rameswar were liable and gave a decree against the other defendants who were either executants or heirs of executants of the mortgage bond exonerating the shares of Mathura Prasad and Rameswar. The appeal was filed by the defendants against whom the decree was passed and they impleaded the plaintiff alone as respondents and not defendants Nos. 5 and 10. The plaintiffs did not file any independent appeal in respect of the shares exonerated by the lower Court and if the other defendants had not appealed they apparently had no complaint against the decree as made. They, however, filed their cross-objections in due course and at the hearing of the appeal made an application under Order 41, Rule 20, for making defendants Nos. 5 and 10 respondents on the ground that they Were interested in the result of their cross-objection which was a part of the regular appeal of the other defendants and an order was made subject to objection at the hearing. Now defendants Nos. 5 and 10 have appeared and on their behalf it has been objected that their shares having been exempted from the decree, they were not at all interested in the appeal of the other defendants and they cannot be brought upon the record under Order 41, Rule 20, in order that the plaintiffs might have against them the same relief as they could have had by a regular appeal and that no reason is shown why as against them what is virtually a regular appeal should be admitted at this distance of time. The decree of the lower Court was signed on the 10th May 1907, and the appeal was filed on the 5th August 1907, and there is no statement or evidence that the plaintiffs would have filed a substantive appeal if the defendants had not filed one. There is, therefore, no reason for admitting an appeal on behalf of the plaintiffs nor do they ask for such an order. They contend that the word appeal in Order 41, Rule 20, includes the cross-objections and as defendants Nos. 5 and 10 are interested in the result of the cross-objections they are liable to be brought in under the rule and to have a decree passed against them. It is farther contended that if their contention of a joint family is right, the defendants Nos. 5 and 10 have no shares at all and a decree declaring the family of the defendants joint and joint properties liable cannot affect any substantial rights possessed by the said defendants.

8. It was held under the Code of 1859 in the case of Amwar Jan Bibee v. Azmut Ali 15 W.R. 26, that a cross-appeal against a co-respondent was wrongly admitted. The learned Judges said 'it has been held in a long series of decisions, that the cross-appeal cannot re-open any questions which have been decided between co-respondents, but must have reference to the appellant and the points which are in dispute between the respondent who takes the cross-appeal and the appellant. It is quite possible that there may be cases in which when an appellant succeeds in his appeal, questions will be opened up as between the co-respondents which would otherwise have been decided; and it is also possible when interests are identical that a respondent succeeding in his cross-appeal may open up questions as between himself and his co-respondent'. There was no provision in that Code analogous to Section 559 of the Code of 1877 or 1882 or Order 41, Rule 20, of the present Code and yet it was considered possible to re-open an issue between co-respondents by a cross-appeal. In the case of Upendra Lal Mukherji v. Girindra Nath Mukherjee 25 C. 565 : 2 C.W.N. 425 decided under the Code of 1882, it was held that in a suit for contribution in which the first Court passed a decree against one defendant No. 9 and exonerated defendants Nos. 1-8, the latter could be brought in under Section 559 and made liable inasmuch as the exonerated defendants Nos. 1-8 were interested in the result of the appeal in this sense that whereas they sought to fasten the liability for contribution on defendant No. 9 the appeal was intended to exonerate defendant No. 9 altogether. The learned Judges said 'the plaintiffs having obtained a decree against defendant No. 9 and being satisfied with that decree were not under any necessity for preferring any appeal to make the other defendants liable. But if at the hearing of the appeal the Court found that the defendant No. 9 was not liable, but the other defendants were liable, we do not think that there was anything wrong in the lower appellate Courts making them respondents and passing a decree against them'. In the case of Hudson v. Basdeo Bajpye 26 C. 109 : 3 C.W.N. 76 in a suit upon a hundi by B against C and H each defendant wanted to throw the liability on the other, the 1st Court passed a decree against C, the appellate Court made H a party under Section 559 and passed a decree against him. The learned Judges said It seems to us in this case that it was necessary for the purpose of settling all questions in dispute between the parties and with a view to prevent future litigation in relation to the same matter, to make Hudson a party respondent to the appeal preferred by defendant No. 1 to the lower appellate Court.' The matter was fully discussed in the case of Bishun Churn Roy Chowdhury v. Jogendra Nath Roy 26 C. 114. In that case the Court of first instance gave a decree for a part of the lands claimed; some only of the defendants appealed against the plaintiffs alone who filed a cross-objection as to the unsuccessful part of their claim and had the non-appealing defendants brought in under Section 559. This Court held that the non-appealing defendants were interested in the result of the appeal, for if the cross-appeal of the appellants was successful against the appealing defendants alone, they might have the plaintiffs as their sharers interfering with their possession, and that the order under Section 559 was rightly made but that the cross-objections could not be urged against them as to do so would be to place the non-appealing defendants in a situation of risk without their having done anything to incur that risk and without their being able to withdraw themselves from that position, as the appellants could at any moment withdraw their appeal and defeat the cross-appeal, but the non-appealing defendants had no such way out. in this state of the decisions the matter came before a Full Bench in the case of Rup Jaun Bibee v. Abdul Kader Bhuyan 31 C. 643; In a contribution suit the claim was decreed against one defendant and dismissed against another. The losing defendant appealed making the plaintiff and the other defendant respondents. It was held that in a case for contribution like the one before the Court it was quite competent to the Court to give a decree against defendant No. 2 who did not appeal. The question under Section 559 did not arise in this case. In the case of Iswardhari Singh v. Sahebzadi 35 C. 538 : 12 C.W.N. 720 it was held that if in a mortgage suit the plaintiff claims relief against two sets-of defendants in the alternative and gets a decree against one set the suit against the other set being dismissed, the Court may, on appeal by the losing defendants to which both the plaintiff and the successful defendant are parties, alter the decree so as to make the latter liable, the real contest in the case being between the defendants. In this case also the question under Section 559 did not arise. It seems to have been laid down in the case of Ramratan Chuckerbutty v. Jogesh Chandra Bhattacharya 12 C.W.N. 625, that a person who has been omitted from the category of respondents in an appeal cannot be brought in as a respondent after the time for appealing against him has expired. This is, however, contrary to the decision of this Court in Manickyamoyee v. Boroda Prosad Mookerjee 9 C. 352 : 11 C.L.R. 430 and we do not think the learned Judges meant to lay down as a broad proposition of law that no respondent can under any circumstances be brought on the record after the period of appealing against him has run out. At all events the provisions of Section 559, Civil Procedure Code, were not considered and it is expressly provided in that section that the Court can make such an order at the hearing which ordinarily comes on long after the expiry of the period limited for an appeal.

9. The result, therefore, of the cases seems to be that the Court is competent to add a respondent at the hearing of an appeal, if the presence of such respondent is necessary for the purpose of properly deciding the appeal and cross-objection, provided such respondent is interested in the result of the appeal as brought and the cross-objection so far as the original appellants are concerned.

10. Our attention has been drawn to the provisions of Order 41, Rule 22, which makes some alterations in the provisions of the old Section 561 and not only provides for notice being given to any party who may be affected by the cross-objection but provides that the withdrawal of the appeal or its dismissal for default will not of itself cause the extinction of the cross-objection which may be heard and determined independently of the defunct appeal. We do not, however, feel at all embarrassed by this provision, in the first place as the present cross-appeal was filed when the old law was in force and in the second place the cross-objection must even under the new rule be heard and determined only so far as it can be heard and determined as a cross-objection and not as an independent appeal. Now let us see how far the facts of the present case bring it within the limits that have been laid down.

11. The plaintiffs wanted to make defendants Nos. 5 and 10 liable on the ground that their husbands were members of a joint family and had benefited by the loan. The Court below held that they had failed to make out their case and exonerated the shares of the husbands. They did not appeal and the defendants Nos. 5 and 10 were quite satisfied with what they got. The other defendants, who were executants of the bond, appealed in order to exonerate themselves alone on the ground that the bond was farzi. If this appeal succeeded the non-appealing defendants Nos. 5 and 10 would remain as before in possession of their released shares: they would not be any way benefited by the successful result of the appeal nor would they lose anything if the appeal failed. If the cross-objection succeeded so far as the appellants are concerned the plaintiffs would not have any additional advantage because so far as the appellants were concerned, the plaintiffs had already got a full decree and so long as the shares released in favour of defendants Nos. 5 and 10 were out of their reach it did not matter whether the appellants were joint or separate. The plaintiffs are, therefore, not interested in the result of the original appeal or of the cross-objection so far only as the appellants are concerned and our order making defendants Nos. 5 and 10 respondents under Section 559 must be discharged with costs 5 gold mohurs as defendants Nos. 5 and 10 are thus out of the record and the shares their husbands released in their favour cannot be touched it is not necessary to consider whether the family was joint at the time of the loan. The cross-objection, therefore, is allowed to the extent of the interest only as stated above with costs 2 gold mohurs against the appellants. The appeal is dismissed with costs.

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