A suit on a mortgage is maintainable even if the original mortgage bond is not filed, provided that the plaintiff is the benamidar and entitled to maintain a suit on the mortgage.

P. V. BALAKRISHNARAO, J.

( 1 ) DEFENDANTS 1 and 2 who are brothers filed this appeal against the judgment and decree of Shri B. S. Patnaik, Subordinate Judge of Cuttack, in a suit for recovery of money due on a mortgage bond. Respondent No. 1 is the plaintiff. Respondents 2, 3 and 4 are the sons of defendant No. 1, respondents 3 and 4 being minors. Respondent No. 5 is Sushila Dibya, widow of defendant No. 1. Appellant No. 1defendant no. 1 having died during the pendency of the appeal, respondents 2, 3, 4 and 5 are his legal representatives.

( 2 ) THE plaintiffs case is that the defendants formed a joint family of which defendants 1 and 2 are the managing members; that defendants 1 and 2 incurred a loan of Rs. 5999/- by registered mortgage bond dated 6-2-37 in order to pay off antecedent debts stipulating to repay it within one year with interest at 9 per cent per annum; and that defendants 1 and 2 not having repaid the loan except a sum of Rs. 400/- on 1-2-44, the suit is filed by the plaintiff for recovery of a sum of Rs. 11,598/- together with future interest within a time to be fixed by the Court failing which the mortgaged properties of the defendants should be sold for realisation of the decretal dues.

( 3 ) IT may be stated here that along with the plaint the original mortgage bond was not filed, but curiously the plaintiff did not allege in the plaint that the original was lost and that therefore be suit was filed on a registration copy of the said mortgage bond. Along with the plaint he filed an application to keep the document filed in a sealed cover which was done. This document put in the sealed cover ultimately turned out to be a registration copy of he mortgage bond. After notice to the defendants, the defendants filed an application to inspect this document and defendants 1 and 2 filed a written statement after the said inspection of the document kept in the sealed cover.

( 4 ) DEFENDANTS 1 and 2 contended that the plaintiff was not a money-lender and did not advance any sum as alleged to the defendants; that he was a benamidar for the real Mahajan Kelu Charan Barik who is related to him, Kelu Charan's son having married the plaintiff's sister that Kelu Charan was heavily assessed to income-tax in 1936 and for that reason he was no longer willing to advance money in his own name to any person; and that the advance was made benami in the name of the plaintiff. These two defendants also contended that defendant No. 1 received only Rs. 4000/- towards consideration, but under the pressure of Kelu charan he executed a mortgage bond for a higher sum, namely, Rs. 5999/ -. They further pleaded that defendant No. 1 sold away gold in 1943 and paid to Kelu charan a sum of Rs. 4800/- which payment was endorsed on the original bond which was then in the custody of Kelu Charan; that at that time it was decided that an amicable settlement of accounts would be made and on further payment, if necessary, the mortgage bond would be deemed discharged; that in 1944 in pursuance of an amicable settlement it was settled that the defendants were to pay about Rs. 900/-including some costs; that defendant No. 1 having with him only a sum of Rs. 400/- paid that amount and the same was endorsed on the mortgage bond; and that defendant No. 1 requested for remission of the balance. It is further stated that defendant No. 1 is an addict of opium and that on that day when Rs. 400/- were paid, that is, 1-2-44 he was very much intoxicated and under that planned intoxication he had endorsed the payment of Rs. 400/-and signed on a certified copy of the mortgage bond under the bona fide impression that the document was the original bond. Defendant No. 2 was also similarly intoxicated and he had signed after his elder brother defendant No. 1.

( 5 ) DEFENDANT No. 3 filed a written statement supporting the contentions of defendants 1 and 2 and denying the consideration of the mortgage, the necessity of the payment on the certified copy of the mort