Patna High Court
Babu Harihar Prasad And Ors. vs Munni Lal Chowdhury And Ors. And ... on 14 February, 1917
Equivalent citations: 39IND. CAS.852
JUDGMENT Chapman, J.
1. On the 21st of August 1903, a deed was executed by one Jagar Nath Prasad in favour of the plaintiffs. The deed recited that Rs. 6,113-8-0 was due to the plaintiffs under a previous bond, and Rs. 1886-8-0 was due to one Babu Binda Prasad. The debt due to Binda Prasad was to be paid by the plaintiffs and the total liability was to be treated as zarpeshgi loan of the amount of Rs. 8,000 bearing interest at 12 annas per cent. Certain properties were leased to the plaintiffs and a promise was made to pay the amount due Under the agreement in Bhado 1314 (1907). The arrangement was, that on failure to pay on the due date the plaintiffs were to remain in possession and were to be entitled to realise the rent and appropriate the same. There was a further recital that the property leased was hypothecated and pledged to the plaintiffs, that the mortgagor should not create any further charge upon the property, and that if the zarpeshgi money was not paid and the zarpeshgidar had to institute a suit in Court for the recovery of the money and the proceeds of the auction-sale of the property proved insufficient, the balance of the money shall be realized from the person and other properties of Jagar Nath Prasad. It appears that subsequent to this transaction the plaintiffs instituted a suit against Jagar Nath Prasad and the other members of his joint family in which the obtained a decree for the sale of this property under another mortgage-bond.
2. The present suit was by the plaintiffs for the money due under the deed of August 1903. They say that as they have already obtained a mortgage decree for the sale of this property they give up their claim as mortgagees and pray for the passing of a money-decree.
3. The excutant of the deed, the defendant No. 1, did not contest the suit; the suit was contested by the defendants Nos. 2 to 5, the other members of his family. They contested the genuineness of the bond, the passing of consideration and the power of defendant No. 1 to bind the other members of the family. They alleged that the purposes of the bond were immoral. These defences failed and the findings of the learned Subordinate Judge upon these points have not been assailed before us. The portion of the judgment which has been assailed is the portion dealing with the question whether the plaintiffs are in any event entitled to a money-decree. It is contended that the bond being an usufructuary bond the plaintiffs are not entitled to a money decree. It is then contended that there being a contract in the bond that the mortgaged property should be proceeded against first, the plaintiffs are not entitled to an ordinary decree for money.
4. Before proceeding to consider this point, it is desirable to advert to the plaintiffs' case that they had been dispossessed from the mortgaged property. This allegation was held by the Subordinate Judge to be not proved. The Subordinate Judge, however, finds that the plaintiffs have voluntarily surrendered possession. This finding appears to be supported by the case of the contesting defendants Nos. 2 to 5, who allege in their written statement that they are in possession of the mortgaged property. It may be taken, therefore, that at the time when the suit was brought, the plaintiffs were not in possession of the mortgaged property.
5. The only question, therefore, which I have to determine is whether there is anything in the bond to justify me in saying that the parties agreed that the debt should be discharged only from the usufruct of the property, or by an ordinary mortgage suit and in no other way. The creation of the debt of which the deed is evidence would create a personal liability on behalf of the defendants, there was a promise to pay and unless there is something in the bond to justify the Court in holding that the parties agreed that their personal liability should be extinguished and that there should be substituted for it merely a liability to be sued as mortgagor, I would have to hold that there was a liability to be sued personally. There is no express stipulation in the bond excluding the liability to a personal decree; there is also no express stipulation that the principle and interest shall be discharged from the usufruct. It was agreed that the property itself shall be mortgaged and hypothecated and that the mortgagee shall be entitled to bring a mortgage suit. I have been unable to find anything in the terms of the bond to justify me in saying that the parties agreed that the liability to be sued personally should be extinguished. This being so, I am of opinion that the learned Subordinate Judge was right in decreeing the plaintiffs' suit.
6. I would dismiss the appeal with costs.
Roe, J.
7. I agree.