Patna High Court
Syed Abbas Alias Aboo Saheb And Ors. vs Misri Lal And Ors. on 15 April, 1920
Equivalent citations: 56IND. CAS.403, AIR 1921 PATNA 27
JUDGMENT Dawson Miller, C.J.
1. These appeals arise out of two suits Nos. 49 and 82 of 1915, which were tried together before the Subordinate Judge of Patna on the 14th Marsh 1917. In the former Misri Lal and his minor son Ram Birieh Lal claim to recover possession of their share of certain properties with mesne profits held under a zarpeshgi lease or mortgage granted by Syed Abbas, the defendant No. 1 in that suit, to Saudagar Mahton, the father of Misri Lal, and Puran Mal, the defendant No. 2. The defendants Nos. 3 to 11 are members of Puran Mal's family. The defendants Nos. 12 to 21 art subsequent ijaradars holding under the mortgagor Syed Abbas and are now in possession of the property. The remaining defendants Nos. 22 to 27 are pro forma defendants, being other members of the plaintiff's family.
2. Misri Lal the plaintiff and Puran Mal the defendant No. 2 held a zarpeshgi lease of the property from Syed Abbas, and the latter contends that he redeemed the mortgaged property by payment of the zarpeshgi money to Puran Mal, co mortgagee with the plaintiff's father, on the 29th June 1915 and subsequently granted an ijara to the defendants Nos. 11 to 21 who are now in possession. The plaintiff claims in the alternative against Puran Mal and his family to recover the sum of Rs. 21,800, half the zarpeshgi money paid to him, in the event of the Court finding that such payment was a valid discharge of the debt due to both the mortgagees. Puran Mal's case is that the money was rightly paid to him, as he alone advanced the whole sum of Its. 43,600 to Syed Abbas and that Saudagar Mahton's name was merely added as a mortgagee owing to an arrangement between them, whereby Saudagar was to remain in actual possession and manage the property for Puran Mal taking as payment therefor a half share in the profits after providing for interest on the loan and other cutgoings.
3. In the second suit No. 82 of 1917 Puran Mal and other members of his family sued Misri Lal and the members of his family for an account of the profits arising from the management of the mortgaged property, of which Saudagar and after his death in 1907 his son Misri Lal are said to have been in possession as agents for Puran Mal.
4. The two cases were tried together before the Subordinate Judge of Patna on the 14th March 1917, who found that payment to Puran Mal was not a valid discharge of Misri Lal's interest in the mortgage debt and directed that Misri Lal should recover joint possession of a half share in the property in suit together with Syed Abbas and the ticcadars, and awarded him mesne profits from those defendants from the date of his dispossession. He further found that Saudagar Mahto and after him Misri Lal bad been in possession of the properties as mortgagees under the zarpeshgi lease to the extent of their half share, and not as agents for Puran Mal and accordingly dismissed Suit No. 82 in which Puran Mal claimed an account from Misri Lal of the profits realised during the currency of the mortgage.
5. From this decision three appeals have been preferred. Appeal No. 95 of 1917 arises out of Suit No. 49 of 1915 and is brought by Syed Abbas, who contends that the payment made to Puran Mal was a valid discharge of the debt. Appeal, No. 127 arising also out of Suit No. 49 is brought by Puran Mal, who contends that the money advanced in consideration of the mortgage was advanced by him alone and that Misri Lal had no interest in the same. Appeal No. 126 arises out of Suit No. 82 and is brought by Puran Mal, claiming that he is entitled to an account from Misri Lal on the grounds already stated.
6. The properties in suit consist of three villages named Subanwa, Bhabhandigha and Kalyanpur, which form part of a wakf estate of which Syed Abbas is the mutwalli. It appears that in the year 1900 Saudagar Mahton held from Syed Abbas a zarpeshgi ticca of the villages in question at a rent of Rs. 4,500. He had also advanced a sum amounting to one year's rent to be repaid at the termination of the lease. The properties of the wakf estate, including the three villages in question, were hypothecated to one Baijnath Singh under a simple mortgage which took priority over Saudagar's zarpeshgi and which had then fallen due. The amount due to Baijnath amounted to Rs. 64,000, but Syed Abbas was unable to raise the whole of this money. Saudagar had been in possession of these villages as ticcadar since about the year 1890 on apparently advantageous terms and as he bad an unexpired term of three years to run, it was to his interest that the mortgage to Baijnath should, if possible, be discharged. As Syed Abbas required financial assistance to raise the greater part of the money necessary to liquidate his debt to Baijnath, he approached Saudagar with a view to obtaining a loan of Rs. 46,300 for this purpose proposing to grant him a fresh zarpeshgi lease of the property for a period of 10 years on somewhat more favourable terms than the existing lease. Saudagar was not in a position to advance the whole of the money required, but according to the plaintiff Misri Lal's case he was able and willing to advance half that sum if he could find any one prepared to join with him in the transaction and advance the other half. He, therefore, approached Puran Mal, a Mahajan residing at Patna, with a view to obtaining the balance required. According to Misri Lal's case Puran Mal agreed to advance half the amount at an interest of 11 annas per cent. per mensem and in conjunction with Sandagar to take a zarpeshgi lease of the villages for a period of 10 years at a rent of Rs. 5,300, out of which the interest on the advance amounting to Rs. 3,597 and the Government revenue and cesses, etc amounting to Rs. 1,701-2-5 were to be deducted, leaving a trifling balance of under Rs. 2 payable to the landlord. The rents of the villages amounted to considerably more than Rs. 5,800 and the net profits were to be divided equally between the two mortgagees. Each party was to be put in possession either by himself or his agents and collect half the dues recoverable by him. Saudagar lived on the spot at Kalyanpur. His Patwari was one Naurangi Lal and according to the case of Misri Lal he was appointed to act for both parties as Patwari whilst Puran Mal appointed as his Gomashta Bishun Singh and subsequently Shakawat Hussain, and by this arrangement half the proceeds were paid over to Bishun Singh and afterwards to his success or Shakawat Hassain, the other half going to Saudagar and after his death to Misri Lal. An instrument in writing dated the 19th August 1900 was accordingly drawn up and executed by the parties to carry out the arrangement come to. By the terms of this document a zarpeshgi lease or mortgage was granted by Syed Abbas to Puran Mal and Saudagar Mahton for a period of 10 years. After reciting the necessity of borrowing money, it proceeds, ' accordingly Babu Puran Mal and Saudagar Mahton have agreed to take lease by making an advance of the sum of Rs, 46,300 carrying interest at 11 annas per cent. per mensem for a period of 10 years of the Mauzas in question. Provision was then made for paying off Sandagar's advance of Rs. 4,000 at the end of three years. The rent was also to remain at the old rate of Rs. 4 5,0 for the same period and from this the sum of Rs. 3,597 was to be deducted for interest on the new loan and the balance of Rs. 903 was to be paid to the mortgagor. For the remainder of the term of 10 years the rent was to be Rs. 5,300 including Government revenue and cesses and the balance, as already stated. of something under Rs. 2 was payable as hakhajri to the mortgagor. The mortgagor also had the option of paying off the whole or a portion of the advance of not less than Rs, 5,000 during the currency of the term, in which case the rent would be increased by the amount of interest proportionate to the sum repaid. The whole of the zarpeshgi money or snob portion as had not been repaid under the above option was payable at the end of Jeyth 1317 F. (June 1910 A. L.J, when the lease should come to an end and the mortgagor would be entitled to get direst possession. But in the event of non payment of the whole zarpeshgi money by last year of the term, the lease with all its conditions was to remain in force until the whole or such part of the debt as was still due had been paid up.
7. There can be no doubt from the terms of this document that both Saudagar Mahton and Puran Mal are referred to as the parsons advancing the money and acquiring the interest in the property, In addition to the passage already quoted the following clause 'appears:
Therefore, of our own free will and accord we" (Syed Abbas and his brother who at that time also had an interest in the property) "have given in lease as detailed below for 10 years on receipt of Rs. 43,600 in advance carrying interest at 11 annas per cent. per mensem to Babu Paran Mal and to Saudagar Mahton the whole and entire 16 annas of each of the Mauzas.
8. Throughout the document these two are referred to as the lessees. Only one other passage in this document need be referred to. It provides that " till payment of the zarpeshgi money the said Mauzas shall stand mortgaged and liable." The effect of this document was to create a mortgage over the leasehold interest in the property as security for the re-payment of the advance, with the stipulation that the lease should continue in any event for 10 years on payment of the reserved rent notwithstanding the earlier discharge of the debt. The lessor could only redeem on re-payment of the loan, otherwise the lessees' interest would continue indefinitely.
9. No portion of the loan was repaid daring the currency of the term and Sandagar having died in 1907, his son Misri Lal succeeded him as karta of the family. The 10 years term expired on the 30th Jeyth 1317 F. (June 1910 A. D.). But nothing was then done by way of repayment and the lessees remained in possession until 5 years later, when a sum of Rs. 41,770-6-9 was paid to Puran Mal on the 29th June 1915, i.e., on the 2nd Asarh 1322 F. or two days after the end of Jeyth that year. The balance of the zarpeshgi money, amounting to Rs. 1,829-9-3, was deducted on account of certain sums said to be due from Misri Lal to Syed Abbas for rent of another Mauza and other small items which Puran Mal agreed to settle in account with his co-lesses. It was alleged on behalf of Syed Abbas that Misri Lal and Puran Mal went together at his request to his house some 3 or 4 days before the 30th Jeyth and that they both agreed on that occasion to these dedaotions, and said they would come again on the 30th Jeth and receive, the money, but that Misrt Lal alone came on the 30th, Puran Mal not being present, and on that occasion the money was tendered to Misri Lal, who said that he had not the patta in his possession as it was with Puran Mal who would return it. This evidence was given by Raghubans Sahay, the Mukhtaram of Syed Abbas. This witness further stated that later on in the evening of the 30th Jeyth Puran Mal did turn up, but for some reason not explained the money was not tendered to him then. The nest day was a holiday and on the following day the 2rd Assarh the money was paid to Puran Mal as already stated. Between the 30th Jeyth and the 2nd Assarh Raghubans consulted his employer's Vakil, Rai Bahadur Purnendn Narain Sinhe, as to bow payment should be made and was advised that as the money was payable to joint mortgagees he could get a good discharge by paying it to one. The Rai Bahadur was called as a witness on behalf of Puran Mal. Syed Abbas had been his client for some years and he had been present when the zarpeshgi deed of the 19th August I900 was executed and was an attesting witness thereto. He had on very clear re-collection of anything that Puran Mal told him about the document on that occasion, but he was evidently stating the facts impartially to the best of his re-collection, and he says that he was informed by Puran Mal when the deed was executed that the money was to be repaid to both Misri Lal and Puran Mal. He further says that when Raghubans asked his advise as to the manner of payment in 1915, he was told by him that Misri Lal was endeavouring to avoid payment and did not turn up at the time when payment due which was the 30th Jeyth. The complaint was that Misri Lal was endeavouring to evade payment within the month of Jeyth. The evidence of this witness can undoubtedly be accepted as accurate but it materially differs from the story put forward by Raghubans and as far as it goes, corroborates that of Misri Lal which will be referred to presently. The evidence of Raghubans was that Misri Lal agreed to everything suggested and was willing that the deductions referred to should be made from the zarpeshgi money, and that be in fast turned up at the house of Syed Abbas on the 30th Jeyth and that it was Puran Mal who did not come on that occasion and that Misri Lal was quite agreeable to the money being given to Puran Mal, The account given by Misri Lal differs materially from that of Raghubans. His story is that on the 2nd Assarh a servant of Syed Abbas told him that the latter wanted to see him about paying off the zarpeshgi, whereupon he pointed out that as the 30th Jeyth had passed it was too late to take payment that year. Nothing else happeted and he did not go to Patna or ever ask syed Abbas or any one else to pay his share to Puran Mal or authorise the latter to receive it, nor did he agree to any deductions nor was any money ever tendered to him. The view he took of the zarpeshgi lease apparently was that it could only be terminated by payment at the end of Jeyth in any year and as that date bad passed, the lease must continue for at least another year. If this story be accepted as it was by the learned Judge, it follows that Misri Lal's interest as mortgagee was never redeemed; nor was any tender ever made to him of what was due. The learned Judge, who dealt very carefully with the evidence, arrived unhesitatingly at the conclusion that Miari Lal's story was true and that that of Baghubans and Puran Mal and the other witnesses for the defendants could not be accepted. He was very unfavourably impressed by the evidence of Puran Mal who, he says, " hesitated, took time and did not tell us the whole truth. " Puran Mal's evidence in the main supported that of Raghubans but differed from it in some important details. He confirms the latter in so far as he says that Misri Lal agreed that he should accept payment from Syed Abbas of the whole of the zarpeshagi money save the deductions already mentioned and that Misri Lal was quite agreeable that these deductions should be made. He differs from Raghubans as to what took place when he and Misri Lal went together to the house of Syed Abbas a few days before payment became due. Puran Mal says that Syed Abbas sent for him and when he went to the latter's house, he found Misri Lal sitting there but did not know for what business he had come. Syed Abbas did not say to Misri Lal that he would pay the zarpeshgi money, and there was no talk at the time as to whether the rent due to Misri Lal would be deducted. No details were discussed. All that Syed Abbas said was that he would pay the money, but when or where was not mentioned and he did not meet Syed Abbas again after that until the money was actually paid on the 2nd Assarh. These stories are, therefore, not in themselves consistent and it is highly improbable if the whole sum was due to Puran Mal and Misri Lal also owed him a sum of over Rs. 57,000, as he alleges in his plaint in Suit No. 82 in respect to these Mauzas that Puran Mal would readily agree to consent to a deduction of over Rs. 1,800 due from Misri Lal to the mortgager on an entirely different transaction and take the chance of recovering it back from Misri Lal in addition to his existing liabilities, and I see no reason for disturbing the conclusions of fact arrived at by the learned Judge on this part of the case.
10. If however, the whole of the loan was advanced by Puran Mal when the mortgage was executed, then payment to him would be a complete discharge of the debt, it remains therefore, to consider the evidence on this part of the case and to determine whether the learned Judge was justified in arriving at the conclusion that Saudagar himself advanced half the loan. I have already stated shortly the case put forward by Misri Lal as to how the advance came to be made, and up to a point there is no dispute between the parties. The case of Puran Mal, however, is that he advanced the whole of the money and allowed Saudagar and afterwards Misri Lal to remain in possession of the property as his agents to collect the rents on his behalf, taking as commission half the net profits after paying the interest due to Puran Mal and the Government revenue and other necessary outgoings. It is admitted that no written agreement was entered into between the parties at any time as evidence of this arrangement, although the zarpeshgi lease itself clearly indicates that the money was advanced by both the lessees and was repayable to them both. Puran Mal gives two reasons for allowing Saudagar's name to appear in the document as one of the lessees, first, that he had complete confidence in him, and, secondly, that there was a fear that the tenants might turn refractory if it were known that Puran Mal alone was the ticcadar. It appears, however, from Puran Mal's own evidence that his first acquaintance with Saudagar dated from 12 months before the transaction was entered into. It also appears that from the beginning the tenants knew that Puran Mal was one of the ticcadars and there is no suggestion that any trouble arose in consequence of this. It is almost inconceivable that a Marwari in the position of Puran Mal, who in addition had considerable Zemindari interests, would conduct his affairs in such an unbusiness like manner and allow a comparative stranger, as Saudagar then was, to be joined with him as lessee and remain in possession of the property without some document in writing defining their relative positions. The only evidence which at all supports Puran Mal's story is the fact that the advance made to Syed Abbas in consideration of the zarpeshgi lease was made by a cheque drawn by Puran Mal on the Bank of Bengal on the 15th September 1900, about a month after the lease was executed. Puran Mal had previously had dealings with the Bank of Bengal and on the 5th September 1900 a new account was opened in his name with that Bank, and between that date and the 13th September deposits amounting in all to over Rs. 59,000 were made to the credit of that account. It is Misri Lal's case that this account was opened for the express purpose of collecting the money to be advanced to Syed Abbas and that a deposit of Rs. 24,075 made on the 11th September included Rs 21,800 of Saudagar Mahton's money. Misri Lal's case is that this money was brought from Kalyan Bigha where Saudagar lived to Patna where Puran Mal lived on the back of an elephant and was taken to Puran Mal's dukhan on the 10th September, and on the following day deposited in the Bank together with a further sum of Puran Mal's own money making together the sum of Rs. 24,075. This story is corroborated by a number of witnesses, some of whom accompanied the elephant whilst others went by train from Kalyan Bigha to Patna City station where they transferred the money from the elephant to a ticca gharry and took it to Puran Mal's house. A further sum of Rs. 11,000 appears from the account to have been deposited by Puran Mal on the 13th September. There was then an amount of something over Rs. 59,000 to the credit of this account, and it is admitted that on the 15th of the same month Puran Mal drew a chaque for Rs, 59,000 in favour of Baijnath Singh, Syed Abbas's creditor. It is not disputed that this cheque included the Rs. 43,600 zarpeshgi money for the lease in question in this suit and a further sum payable by Syed Abbas to Baijnath in respect to another transaction in which Puran Mal was financing him. Puran Mal contended that the whole of this money was his own and that the account had been opened with the Bank of Bengal before the zarpeshgi was executed and that the deposits were not made for the purpose of collecting the zarpeshgi money and paying it by cheque. This story, however, is not borne out by Gobind Ram, the brother of Puran Mal and one of his witnesses, who says that the account was opened with the Bank of Bengal after the lease was executed for the express purpose of collecting the money, and the account itself appearing from the Bark books shews that the first deposit was made on the 5th November. Puran Mal was cross examined as to the source from which these deposits came, but was unable to give any account except that he said he got the money from Calcutta. He said, however, that be had a jama kharoch book which would shew from what source the money was obtained at the time of depositing in the Bank, and unfortunately he was not cross-examined further as to the specific item of Rs. 24,075 deposited on the 11th September, which the plaintiff claims included his money, and the evidence of Misri Lal's witnesses was not taken until after Puran Mal had been examined. It was strongly urged before us that this lack of cross- examination upon a vital point in the case went a long way to support Puran Mal's case and that the story as to money being brought to Patna and handed over to Puran Mal on the 10th September ought not to be accepted. There is no doubt considerable force in this argument, and it would certainly have assisted Misri Lal's case had the learned Vakil appearing on his behalf put the whole story with regard to the payment of this money by his client and the subsequent deposit in the Bank to Puran Mal in cross-examination instead of confining himself to a few questions as to the source from which the deposits came. There are, however, so many improbabilities in the story presented by Puran Mal that I am not prepared to say that the learned Judge who saw the witnesses was not justified in disbelieving his evidence and accepting that of Misri Lal. No documents were produced by Puran Mal in support of this part of his story, nor had he the jama kharoch book with him upon which he relied. This book he stated was in the possession of an arbitrator at Calcutta who at that time was sitting upon an arbitration in a partion case between Puran Mal and other members of his family, and the Court ordered a telegram to be sent to the arbitrator asking for the book to be sent. The telegram was sent the same day that Puran Mal gave his evidence, and a reply was received from the arbitrator that there must be some misconception as the account books had been taken away by Puran Mal and his brother some time in the previous year and were not in his possession. About a week later a letter was addressed to the Peshkar of the Subordinate Judge's Court from the arbitrator, stating that although none of the account books of Puran Mal were in his possession, some of them were with Babu Kanhai Lal Mahsuddi, who was apparently another arbitrator engaged in the came case, and that be had asked the latter to forward them. The railway receipt for these book", when they were sent by Kanhai Lal, was received by the Peshkar but returned presumably with the consent of the Judge as there had been no order of the Court requesting Kanhai Lal to send them. On the 2nd March when the evidence of both parties was closed, Puran Mal petitioned the Court to appoint a Commissioner to examine these account books, but the Judge rejected the petition on the ground that he did not consider it a bona fide one and that every possible opportunity had been given to the petitioners to produce their documents at an earlier period. It was urged before us that Puran Mal had been unfairly treated in this matter, first, because after be had agreed to the two cases being tried together his evidence was taken first by the order of the Judge and that he did not think at that time that these documents would be necessary, and that he ought to have been given an opportunity after Misri Lal's witnesses were examined of calling rebutting evidence. I do not think that he has any grievance from the fact that he was ordered to begin and call his witnesses first. He was the plaintiff in Suit No. 82 and the trial had originally been fixed for hearing on the 9th May 1916 in that suit, by which date he was ordered to be ready with his witnesses and evidence. The case did not in fact come on for heating until many months later. According to the procedure by which the trial of actions is governed, the parties must produce at the first hearing of the suit all the documentary evidence of every description in their possession or power on which they intend to rely and which has not already been filed in Court, and no other documentary evidence shall be received at any subsequent stage of the proceedings unless good cause be shown to the satisfaction of the Court for the non-production thereof. These rules have the salutary effect in many cases of preventing documentary evidence from being fabricated for the purposes of the case. In the present case some documents had been produced on behalf of Puran Mal which the learned Judge rejected on the ground that they were not genuine, and I see no reason for interfering with his discretion in refusing the application to have these account books examined by a Commissioner in the circumstances. Throughout the record there is no documentary evidence apart from that already mentioned to suggest that Puran Mal alone advanced the zarpeshgi money, and such oral evidence as there was on this point was by no means convincing and was dismissed by the learned Judge as unworthy of credence. It is also very significant that if he alone was entitled to the whole of the interest on the sum advanced, he never in fact received, it from Saudagar or after his death from Misri Lal and although his case is that they failed to pay him this money and a large debt was accumulating against them without any security for its payment, he appears to have taken no effective steps to obtain any account from them upto the moment that Misri Lal's suit was instituted. In fact although Misri Lal instituted his suit for possession on the 10th July, a few days after he was dispossessed, and made an alternative claim therein against Puran Mal for half the zarpeshgi money, it was not until the 2nd December that Puran Mal filed his suit for an account. Although Saudagar died in 1907 without rendering any account to Puran Mal, Misri Lal was allowed without protest to continue in possession of his half share including the interest on the zarpethgi money as well as half the net profits, and still no accounts were obtained from him and in the Record of Rights finally framed and published on the 1st August 1910 the names of Puran Mal and Misri Lal were recorded in the Khewat relating to these Mauzas as interested in equal shares without any protest on behalf of Puran Mal. The only reason given by the latter for allowing this state of affairs to continue was that he had confidence in Saudagar whom he had met for the first time about a year before the zarpeshgi lease was executed. This confidence one would hare expected to have been seriously shaken when on his death no accounts were forthcoming, and yet we find that his son Misri Lal was allowed to continue in possession of his half share receiving half the interest and half the profits in the same way an his father bad done before him It is alleged that Misri Lal rendered some accounts in the year 1809 which purported to be in the hand writing of Naurangi Lal the Patwari, but this would not explain why matters were allowed to go on some six years longer without any settlement of this account. Naurangi Lal denies that these papers are in hie hand writing, and the learned Judge on comparing them with the admitted writing of Naurangi Lal ejected them as spurious, It was said that Naurangi Lal would be sent to explain these papers but it is admitted that he never came. Moreover, the papers relied on shew an entirely different state of affairs from that actually existing. These papers shew Danabandi, although admittedly the Mauzas were Batai, and they further in other cases show a higher rate of rent than that admittedly existing and differ in other respects from the existing facts, as pointed out by the learned Judge. I can see no reason whatever, after reviewing the whole of the evidence, to differ from the conclusions of fact arrived at in the trial Court.
11. The only question which remains is whether payment to one of two mortgagees is a discharge of the mortgagor's liability to the other. The common law rule that payment to one of two joint creditors discharges the debt due to both is subject to the equitable rule that mortgagees must, unless the contrary is shewn, be regarded as having a separate interest in the money advanced, although they take a joint security, and must be treated as in the position of tenants-in common and not joint tenants [see Steeds v. Steeds (1899 22 Q.B.D. 537 at p. 540 : 58 L.J.Q.B. 302 : 60 L.T. 318 : 37 W.R. 378 and 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]. It was contended before us that this doctrine was not the law of this country and the case of Barber Maran v. Ramana Goundan 20 M. 461 : 7 M.L.J. 269 : 7 Ind. Dec. (N.S.) 327 was relied on. It was held by the Madras High Court in that case that payment to one of two joint mortgagees was a good discharge of the debt to both, and this was followed by the majority of the Full Bench of that Court in the case of Mannava Annapurnamma v. Uppala Akkayya 19 Ind. Cas. 12 : 36 M. 544 : 13 M.L.T. 268 (1931) M.W.N. 328 : 24 M.L.T. 333 where the question was whether one of several payees of a negotiable instrument can give a valid discharge of the entire debt without the concurrence of the others. Of the three learned Judges who decided that case one of them, the Chief Justice, dissented. So far as mortgagees are concerned, the view of the Madras High Court has been repeatedly dissented from by the High Court of Calcutta [fee Husainara Begum v. Bahmannessa Begum 8 Ind. Cas. 837 : 38 C. 342 : 13 C.L.J. 3 and Umes Chandra Banerjee v. Dinabandhu Mahanti 29 Ind. Cas. 956 : 21 C.L.J. 570 and other oases The Madras decision in Bather Maran v. Ramana Goundan 20 M. 461 : 7 M.L.J. 269 : 7 Ind. Dec. (N.S.) 327 (ubi sup.) may be justified on the ground that the mortgagees in that case were in fact joint and took as joint tenants, but in my opinion the rolings in Seeds v. Steeds (1899 22 Q.B.D. 537 at p. 540 : 58 L.J.Q.B. 302 : 60 L.T. 318 : 37 W.R. 378 and Powell v. Broadhurst (1901) 2 Ch. 160 : 70 L.J. Ch. 587 : 84 L.T. 620 : 49 W.R. 532 : 17 T.L.R. 501 (ubi sup ) are good law in this country and mortgagees will be regarded as having several interests unless the contrary be shewn, and the decisions of the Calcutta High Court correctly lay down the law on this matter. It was contended that an offer of performance had been made to Misri Lal on the 30th Jeth, but as already stated the evidence of this tender to Misri Lal cannot be accepted. Section 38 (3) of the Indian Contract Act was relied on as shewing that the legal consequence of the offer subsequently made to Puran Mal and the acceptance by him was to put an end to the debt. It will be observed, however, that this part of the section relates to joint promisees and the presumption is that co-mortgagees are not joint. It is unnecessary, therefore, to consider further the effect of this section. I may mention that the Allahabad High Court has taken the same view as that of Calcutta, that one of two mortgagees who have advanced the mortgage money equally cannot give a good discharge of the entire mortgage debt with-out the consent of the other.
12. In my opinion these appeals should be dismissed with costs.
Coutts, J.
13. I agree.