9911796707
TMI Blog1930 (5) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... d refused to admit it to probate. The widows appealed to the High Court of Judicature at Port William, whereupon the Administrator-General of Bengal as executor of the earlier will of 1892, sought to prove it in the same High Court. The widows entered a caveat to this proceeding. The result, was a compromise, of which the present suit is the outcome. Commenced so long ago as 22nd March 1909, it has proceeded ever since for one purpose or another, and with many re-arrangements of parties in its course. Of the diverse questions which in its different stages have been raised, some of substance, but as many of mere form, all have now been disposed of save that which is the subject of the present appeal. 3. As a result of the judgment of the Board of 30th May 1919, the suit when it finally came on for trial before the learned Subordinate Judge of Rangpur had become in his words: one for the entire mortgage money by the assignees of the entire body of mortgagees who pray for the sale of the entire mortgaged properties. 4. Since then, a compromise with the assignees of one of the mortgagees has been reached. But by the respondents the assignees of the other, the suit has been wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecure advances with interest, certain properties forming part of the testator's estate. In these circumstances, it might have been supposed, if regard were had to the terms of settlement only that the deed to be prepared' by the solicitors for the widows would have made the charge in their favour, subject to Aga Muhammad's mortgage of 14th April 1904. It might also have been supposed that it would contain no provision anywhere for payment of compound interest. The draft mortgage, however, which was in fact sent for approval to the appellant's solicitors, was not so framed in either respect. The draft showed the residuary estate of the testator in three schedules, Schedule A, compromising the entirety of his immovable properties; Schedule B, comprising his jewels, Government promissory notes and other moveable property; Schedule C. describing two of the immovable properties already comprised in Schedule A. These last properties were the subject matter of Aga Muhammad's mortgage. But, firstly, by the draft, the mortgage in favour of the widows was not made subject to that charge, On the contrary, Aga Muhammad was expressed to join in the deed for the purpose of po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest and costs, sell the properties mentioned in the Schedule C, which are subject to the mortgage of the said Aga Muhammad Baquir Ispahani. 9. Now, if the mortgage deed as executed had in all respects followed the terms of the draft as just stated, this last clause of it would have raised no difficulty. But the appellant's solicitor struck out from the draft the provision for payment of compound interest in the covenant for payment of principal and interest. He also struck out the provision in the proviso for redemption of the properties in Schs. A and C. But in circumstances which have not been gone into in this litigation, he left standing in the draft that same provision for the payment of compound interest in the proviso for redemption of the moveable property in Schedule B. And these alterations of his in their draft were accepted by the solicitors of the widows without comment, and the draft as so altered was engrossed and in due course executed by the appellant on 5th March 1907. 10. By the deed as thus executed both mortgagor and mortgagees are, it is now agreed, bound. That is not to say that either side is content with it. The attorneys for the widows had, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with compound interest, but they still claimed that a personal decree for compound interest should be passed against the appellant, and, relying on the last clause of the deed, that, at all events, the properties C should be charged with compound interest, The learned Judges of the High Court rejected the first of these claims, but they upheld the second. Their reasons for doing so are expressed In these two sentences: As observed before, Schedule B is subject to claim for compound interest and the clause as it stands must mean that if the principal and interest chargeable on properties mentioned in Schs. A and B are not fully realized by the sale of those properties, the properties mentioned in Schedule C may be sold to make up the deficiency. The properties in Schedule C are thus made liable for the claim for compound interest. 12. This appeal is from the decree of the High Court of 25th March 1925, embodying that conclusion, and the only question their Lordships have to determine is whether it is right. 13. In their Lordships' judgment, the learned Judges of the High Court, in accepting so lightly the contention on this point presented to them by the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
