Tarkeshwar Math, J. - (1.)This appeal, by the plaintiff, arises out of a suit for enforcing a simple mortgage bond dated the 10th August, 1943, executed by Girish Chandra Biswas and defendants 1 and 3 in favour of the plaintiff for a sum of Rs. 2000. Girish Chandra Biswas had two sons, namely, Ratneshwar Biswas and Ramapati Biswas (defendants 2 and 1 respectively). Ratnashwar has four sons, Basanta (Defendant 3), Kalidas, Bamdas and Bankim, whereas Ramapati Biswas has a minor son Tapash Kumar. The plaintiff's case was that for the reclamation of gair-mazrue lands in village Banda belonging to the joint family of the defendants they approached the plaintiff-bank for an over-draft to the limit of Rs. 2000; and Girish Chandra Biswas and defendants 1 and 3 executed a simple mortgage deed on the 10th August, 1943, for the over-draft loan agreeing to pay the loan with interest at the rate of 7 per cent per annum by the 31st December, 1944. Defendant 2 was a lunatic and was represented by his eldest brother, defendant 1, as curator and guardian. All the defendants were joint and Girish Chandra Biswas was the head member of his family. He died in 1950 (1949 ?) and after him deft. 1 became the head member of the said family. The loan was incurred for the benefit of the joint family, and the defendants were in possession of the assets left by Girish Chandra Biswas. The mortgage was in respect of a house with lands bearing holding No. 35 in the town of Hazaribagh. The defendants made few payments; and they were all noted in the account up to December, 1944, when the limit of the said over-draft was raised to Rs. 4000. For the extended limit the defendants assigned some of their life policies by way of security; and the plaintiff-bank adjusted a sum of Rs. 2,345/147- as surrender value of those policies pledged with the bank. The plaintiff further adjusted a sum of Rs. 1504/12/-, which was the amount of the Provident Fund belonging to defendant 1, as that, as welt, was pledged. Girish Chandra and defendants 1 and 3 executed a handnote as well on the 23rd December, 1944, for a sum of Rs. 2000 by way of additional security for the extended limit of the over draft. The advances having been made by way of over-drafts, the plaintiff was entitled to charge compound interest in respect of such advances according to the banking practice. According to the schedule of accounts given in the plaint, which contained the various debit and credit entries, the plaintiff claimed a sum of Rs. 5,239/9/8 in the present suit from the defendants; and the prayer was for a preliminary mortgage decree for this sum under Order 34, Civil Procedure Code, in respect of the house, which W2s the subject-matter of the mortgage bond. As the defendants failed to make any payment, the plaintiff instituted the suit, out of which this appeal arises, on the 2nd January, 1957.
(2.)Defendant 2 being a lunatic, his guardian filed a formal written statement; defendant 1 did not appear; and the real contest was by defendant 3. Defendant 3 contested the suit on grounds, inter alia, that it was barred by limitation; and the suit was bad for non-joinder of his three brothers who are necessary parties in this suit. According to him, the sums advanced were repaid long ago with interest upon them. There was no agreement for payment of compound interest. The family was not joint; and - defendant 1 was the youngest son of Girish Chandra Biswas; and not the eldest. Defendant 2 became a lunatic more than twenty years ago; and his whereabouts were not known. After the death of Girish Chandra Biswas in 1949, defendant 3 and his three brothers-inherited half share of the mortgaged house; and in 1950, all the four brothers got the entire mortgaged house in their share on the basis of an amicable partition with, defendant 1. After that partition, they had exclusive title in respect of the said house. He was not liable to pay the sum of Rs. 808 which was advanced before the. 10th August, 1943; and besides that there was no liability for the payment of Rs. 3552/11/9, which was drawn. In excess of Rs. 2,000. The surrender value of the life, policies and the amount of Provident Fund adjusted by the plaintiff were very much less than their actual and real value. He further asserted that he did not derive any benefit from the loans in question; and the plaintiff was not entitled to make, any claim against him.
(3.)Issues 4, 5 and 6 were in the following terms:
"4. Is the suit bad for non-joinder and mis-joinder of parties? 5. Is the claim for compound interest valid and legal? 6. Is the plaintiff entitled to get a decree and if so for what amount and against whom?"