Judgement

Consolidated Appeals (No. 136 of 1924) from a decree of the High Court (April 12, 1922) varying a decree of the Subordinate Judge of Bhagalpur (June 17, 1918).

The suit was brought by the above named appellants to enforce a mortgage, dated December 21, 1896, to secure Rs.3,50,000 of which Rs.l,36,142 were advanced in cash, the balance being the amount due under a previous bond. The greater part of the mortgaged properties was situate in the Sonthal Parganas, where the mortgagors resided, the remainder in the district of Bhagalpur ; the mortgage was registered in Bhagalpur.

The appeal raised questions as to the jurisdiction of the Subordinate Judge at Bhagalpur having regard to the Sonthal Parganas Settlement (Amendment) Regulation, 1908, and (if there were jurisdiction) as to the effect of s. 6 of the Sonthal Parganas Settlement Regulation, 1872, upon the amount of interest recoverable.

The facts and the relevant provisions of the Legislature appear from the judgment of the Judicial Committee.

The Subordinate Judge made a preliminary decree for sale for Rs.15,27,997, and a personal decree for Rs.44,164 on account of principal and interest.

Both parties appealed to the High Court. The learned judges who heard the appeal (Dawson Miller

C.J. and Bucknill J.) varied the above decree by passing a decree for sale for Rs,3,88,673 and making a personal decree for Rs.23,181.

1925. June 15, 16, 18. De Gruyther K.C., and Dube for the plaintiffs-appellants.

Sir George Lowndes K.C., and E. B. Raikes for the defendants-respondents.

July 21. The judgment of their Lordships was delivered by

SIR JOHN EDGE. These are two consolidated appeals from a decree of April 12, 1922, of the High Court at Patna, which varied a decree of June 17, 1918, of the Subordinate Judge of Bhagalpur.

The suit in which these consolidated appeals have arisen was instituted in the Court of the Subordinate Judge of Bhagalpur on February 5, 1915. The plaintiffs claimed Rs. 11,81,811 principal and interest alleged to be then due under a mortgage bond of December 21, 1896, for Rs.3,50,000, of which Rs. 1,36,142 were advanced in cash, the balance being money alleged to be due under a previous bond of October 3, 1883, and for moneys advanced at various times, and for interest at various rates. The bond in suit provided that the principal sum of Rs.3,50,000 was to carry 7 1/2 per centum compound interest with yearly rests. The principal was repayable in the month of Phagon, 1310 Fasli, the last day of which month was March 14, A.D. 1903. The bond was executed by all the adult male members of the joint family, the members of which family lived in the Sonthal Parganas, and was also executed by them on behalf of all the minor members of the joint family as their guardians. It was intended that the bond should bind all the members of the joint family and the property mentioned in the bond. All the defendants, except as later in this paragraph is mentioned, are members of the joint family. The joint family is governed by the school of Hindu law of the Mithila. The grantee of the bond, who was the mortgagee, was Surja Narain Singh, Bahadur, of the District of Bhagalpur, by profession a pleader, who had occasionally acted for the joint family, and knew its financial position; he died long before this suit was brought, and the plaintiffs are his representatives and are the persons in whom are vested his rights under the bond. The defendant, Dwarka Prasad Singh, was by birth a member of the joint family. Since the bond was made he was adopted into another family. The other defendants, who are not members of the joint family, claim through the joint family. The executants of the bond, in addition to granting the rights of a mortgagee to Surja Narain Singh, declared by the bond that they should jointly and severally pay the principal and interest, simple and compound, for which the bond was given. A previous suit on the same mortgage bond of December 21, 1896, had been brought