JADUNATH ROY Vs. PARAMESWAR MULLICK

JUDGEMENT

(1.) By three English mortgages executed in 1923 and 1924 one Bhuban Mohan Mullick (a Hindu governed by the Dayabhaga) mortgaged to appellant 1 and the father of the other four appellants his one-eighth share in certain immovable property. The capital sums secured amounted to Rs. 2,35,000. On 24 April 1925 he died intestate, leaving him surviving a widow, Sm. Annabati Dassi, a minor son Biswanath and an unmarried daughter Sm. Parbati Dassi (also a married daughter who need not here be further mentioned). By the decree under appeal which is dated 28 January 1937 it has been held by the High Court at Fort William in Bengal that the maintenance of the widow and unmarried daughter is a charge upon the interest of the mortgagees under the mortgages. This conclusion is prima facie opposed to the rights of the parties; indeed it does not in the end appear to have been doubted by the Courts in India that while the ladies would have a claim to a charge upon any property coming to Biswanath as heir to his father, the interest of the father's mortgagees was not such property and is not liable upon the death of the mortgagor to be burdened with the maintenance of his widow or daughter. In order to trace the steps by which a contrary result has been arrived at by the High Court it will clearly be important to bear in mind throughout that the appellants' mortgages were all taken from Bhuban Mohan in his lifetime and not from his son after his death.

(2.) The appellants brought a suit upon their mortgages in the High Court on 7 June 1926 impleading Biswanath. They obtained a preliminary decree on 12 January 1928 and a final decree for sale on 21st January 1929. On 11 January 1930 they purchased the mortgaged property at the execution sale and obtained a sale certificate on 19 February 1930 in respect thereof. On 30 August 1929 - some seven months after final decree and some five months before the execution sale-the partition suit out of which the present appeal arises was brought in the Court of the Subordinate Judge, 24-Parganas. The one-eighth share which Bhuban Mohan had mortgaged was his share in certain property which had belonged to his grandfather Kunja Bihari Mullick. Kunja had died in 1899 leaving a will whereby after giving certain pecuniary legacies he directed that the residue of his estate should go in equal shares to his three sons and a grandson by a deceased son. His fourth son was Pulin Behari who died intestate on 28 December 1919 leaving him surviving two sons Bhuban Mohan and another. Hence Bhuban Mohan had a one- eighth share in a number of properties which had belonged to his grandfather and by the mortgages of 1923 and 1924 be had incumbered his share in some (not all) of these properties. The partition suit was brought by Murari Mohan, a son of Kunja's eldest son. Biswanath was impleaded as defendant 6, Annabali, his mother, and Parbati, his sister, were defendants 13 and 15 respectively. The appellants were not made parties to the suit. By a written statement filed on behalf of Biswanath, Parbati and the widow it was submitted that Biswanath's one-eighth share should be allotted to him subject to the claim of his mother and sister for maintenance. On 1 October, 1929 a preliminary decree for partition was pronounced declaring the share of Biswanath to be one-eighth subject to the charge for maintenance and other expenses of his mother, defendant 13, and marriage expenses and maintenance of his unmarried sister, defendant 15. Neither in the pleadings nor in the decree was any mention made of the mortgages to the appellants nor was any decision given with respect to the appellants' rights. The direction to the commissioners of partition was a general direction to make the valuation and allotments of the properties "according to the aforesaid shares" though in the case of some of the shares other than Biswanath's the decree provided for the maintenance of females being charged not on all the property allotted to each particular share but only on a sufficient part thereof.

(3.) On 12 December 1929 (before the execution sale) and also on 14 January 1930, (after the sale but before confirmation) the appellants applied to the Subordinate Judge that they might be made parties to the partition suit. By orders dated 29 January and 12 April 1930 the Subordinate Judge refused their request on the ground that it was not necessary at that stage to make them parties; but he directed the commissioners of partition to hear the appellants' submissions. This order was challenged in the High Court and on 14 July 1930, a Division Bench of the High Court set it aside directing that the present appellants should be added as parties to the suit as from 12 April 1930, on which date their application was rejected, the proceedings taken before the said 12 April 1980 being binding upon them just as much as they would be binding upon their predecessor-in-interest. The Subordinate Judge having amended the plaint on 12 September 1930, in accordance with this decision, the appellants (now defendants 17 to 21) on 17 September applied to him to set aside or amend the preliminary decree in so far as it declared charges upon the share of Biswanath in favour of his mother and sister. This application was by order dated 23 February 1931, refused on the ground that by virtue of the High Court's decision the decree that was passed on 1 October 1929 is as binding upon them as upon their predecessor-in-interest and it is clearly not open to them to challenge anything that was done in relation to the proceedings in Court prior to 12 April last.