Panckridge, J - (1.)This suit is brought on an indenture of mortgage dated 17 September 1930. The transactions which have preceded the suit are somewhat involved, and must be set out in detail if the issues before the Court are to be understood. The plaintiff and the defendant, Nirmal Chunder Chunder, are the sons of Raj Chunder Chunder, who died intestate on 5 July 1915, and the defendant, Sushilabala, is Raj Chunder's widow. Raj Chunder was the son of Ganesh Chunder Chunder, who was for many years a highly respected attorney of this Court. Ganesh died on 4 July 1914, and his will was subsequently proved. Part of his estate consisted of Nos. 23 and 24, Wellington Street, the premises which are part of the subject- matter of the mortgage in suit. At the date of that mortgage a number of transactions had been effected, the result of which was that, subject to a charge for the worship of certain family deities, one undivided half of the premises was the property of the defendant, Nirmal, absolutely, and as regards the other half, the defendant Sushilabala had a life interest, the reversioners being the heirs of the defendant Nirmal.
(2.)Of the transactions to which I have referred, only one requires detailed examination. That transaction is embodied in a deed of release of 24 November 1928, the parties to which were the plaintiff, the defendant Nirmal, and the defendant Sushilabala. The deed inter alia recites that the defendant Sushilabala as a Hindu mother claims a one-third share of the estate of Raj Chunder upon partition thereof between the defendant Nirmal and the plaintiff, and that she has, in lieu of all her claims of every nature as a Hindu widow and Hindu mother, agreed to accept a sum of Rs. 300 per month to be paid by the defendant Nirmal, the right to occupy a certain house at Benares, and an undivided half-share in the mortgaged premises Nos. 23 and 24, Wellington Street, to be held by her for life and with reversion to the heirs of Nirmal. The deed also recites that the defendant Sushilabala has agreed to relieve the estate of Raj Chunder from all her claims including inter alia claims for residence and maintenance in arrears or to become due, and to pay the plaintiff a sum of Rs. 25,000.
(3.)The operative part of the deed conforms to the recitals, that is to say the plaintiff conveys his undivided share in the premises to the defendant Sushilabala for her life with reversion upon her death to the heirs of the defendant Nirmal. Later on the defendant Sushilabala covenants with the plaintiff to pay him Rs. 25,000 within one year, that sum being charged on the property conveyed until payment. At the end of the deed there is a clause whereby it is agreed that the defendant Sushilabala shall have full power and authority to raise a sum of Rs. 25,000 only on the mortgage of her undivided half-share in the premises. The next transaction to be considered is the mortgage of 17 September 1930. The parties to the deed are the defendants Nirmal and Sushilabala, called the mortgagors, the plaintiff and the defendant Bose, called the sureties, and the mortgagees, two ladies named Siddeseswari and Provabati. The mortgaged premises are Nos. 23 and 24, Wellington Street, and No. 157, Cotton Street, but the present dispute is concerned only with Wellington Street. There are recitals to the effect that the sum of Rs. 25,000 due to the plaintiff in terms of the deed of release has not been paid, and that the defendant Sushilabala has not effected any mortgage under the power reserved to her in that behalf, and also that the plaintiff has agreed to postpone the charge created in his favour by the deed of release. In the operative part, the mortgagors and sureties jointly and severally covenant to pay the sum advanced (Rs. 80,000) on 17th September 1930 with interest at 7 1/2 per cent. There is an important proviso whereby it is agreed that, although as between the mortgagors and the sureties, the sureties are only sureties for the mortgagors, yet as between the sureties and the mortgagees, the sureties shall be considered as principal debtors. By Clauses 1 to 9 it is provided that the mortgagees shall upon payment to them by the sureties or either of them, of the sum due whenever called on to do so, assign or transfer the mortgage security to the surety or sureties. The deed concludes with a covenant whereby the surety, the defendant Bose, covenants with the mortgagees that he will not, so long as the mortgage moneys thereby secured remain unsatisfied or are (not?) assigned to sureties, deal with or assign a decree for Rs. 84,513-11- 10, of which he is the holder, and that he will apply and appropriate all moneys realized by him by virtue of the decree towards payment of the mortgagees dues, and to the extent of the payment so made, he shall be subrogated to the position of the mortgagees.