JUDGMENT 1. This appeal arises out of a suit brought by the Plaintiffs as assignees of a mortgage, dated the 28th April 1896, executed by one Mahomed Buksh in favour of a lady named Nawaba Hurmuzi Begum. The Plaintiffs' case is that they took an assignment from this lady who is their relative and about 80 years of age and paid her Rs. 16,000 in silver at her own house before the registration of the instrument of the assignment. 2. The bond was for Rs. 5,000 with 24 per cent. interest and compound interest with monthly rests. The mortgage-debt had mounted up at the time of suit to about Rs. 45,000. The bond is admittedly genuine and the Plaintiffs have obtained a decree for the whole amount. Out of a large number of Defendants who were joined in the suit as, having some interest in the properties mortgaged, the Defendant No. 27, the Mohunt of Budh Gya, alone appeals. Property No. 5 in the schedule to the plaint is alone involved in this appeal. 3. The property consists of certain mokurari rights in a mauza-Pesra Kumhari-otherwise called Pesra Nizamut and Sunder Kumhari asli mai dakhli appertaining to Mahal Azamgarh, Pargana Sherghatty, District Gya. 4. The, Plaintiffs claim that the mortgagor had 16 annas of this property in permanent mokurari interest and one of the questions raised and decided in this suit is as to the share of the mortgagor. The Mohunt had a subsequent mortgage, on Pesra and Sunder Kumhari, described in his plaint as two separate villages, in one tauzi number, dated 26th May 1896. He also claimed a prior lien on the properties as assignee of a mortgage to Baijnath Singh and his brothers, dated 16th March 1887, given by Mahomed Buksh in respect of certain shares in all the mauzas held by him in Mahal Azamgarh. 5. Baijnath Singh's family sued on their mortgage in 1894 and got a decree on the 11th August 1896. This decree was assigned to the Mohunt. 5. Baijnath Singh's family sued on their mortgage in 1894 and got a decree on the 11th August 1896. This decree was assigned to the Mohunt. In a suit brought by the Mohunt in the year 1900 on his mortgage of 22nd May 1896 and a deed of further charge, dated 3rd March 1897, Musammat Hurmuzi Begum was made a party and the principal contention of the Appellant before us is that the decree of the District Judge, dated 19th July 1900, operates as res judicata against her so that her assignees cannot now sue on her mortgage. 6. This plea was never put forward in the written statement, nor in the lower Court, nor is it taken in the grounds of appeal before us. 7. It was strenuously urged before us by the learned Vakil for the Respondent that by reason of Or. VIII, r. 2, of the Civil Procedure Code, all pleas of estoppel of whatever nature are barred unless they are taken in the written statement. It was pointed out that Or. VIII, r. 2, corresponds in every respect to Or. XIX, r. 15, of the English Judicature Acts and a note in this year's Annual Practice citing the authority of Coppinger v. Norton ([1903] 2 Ir. Rep. 241) for the proposition that all estoppels are included in that rule was put before us. On referring to the report of that case however we do not find that any such rule is laid down in the judgment of any of the learned Judges three of whom delivered separate judgments. We do not think that an objection which could have been taken by one of numerous Defendants in the suit to show that his purchased right in the property could not be affected by the Plaintiffs' suit by reason of the principle of res judicata was a matter which could be said to show that the Plaintiffs' suit was not maintainable. We think therefore that the question could be raised with the leave of the Court under Or. XLI, r. 2. 8. We, therefore, though with some hesitation, allowed the point to be argued, but we considered it our duty to put the strictest interpretation on the proceedings in the suit of 1900 which are alleged to create the bar of res judicata. What then are the facts as regards that litigation? 9. XLI, r. 2. 8. We, therefore, though with some hesitation, allowed the point to be argued, but we considered it our duty to put the strictest interpretation on the proceedings in the suit of 1900 which are alleged to create the bar of res judicata. What then are the facts as regards that litigation? 9. It appears that Nawaba Hurmuzi Begum was Defendant No. 13 in that suit. In para. 7 of the plaint dated 27th July 1899, it was stated that "the Plaintiff had come to know that the Defendants Nos. 9 to 18 assert some connection with the properties mortgaged under the Plaintiff's bond; therefore they have been added as Defendants to give them a chance of redemption of mortgage.'' 10. It is strenuously urged that this is impleading the Defendant No. 13 as a puisne mortgagee. But it is to be noted that all the Defendants, Nos. 8 to 18, were impleaded under different interests. Nos. 9 to 11 were the family of Baijnath who admittedly had a prior mortgage and the decree the Mohunt obtained directed that the sale-proceeds should be applied first to the payment of their mortgage. There is nothing in the pleadings to show that these Defendants had any subsequent mortgages and the judgment distinctly says they were admittedly prior mortgagees. The Defendant No. 13 had a separate mortgage of her own and a petition of the 6th June 1900, put in by the Mohunt, gives the correct date of her mortgage 28th April 1896, thus admitting that it was a prior mortgage but asking that she should be kept on the record because the Plaintiff did not admit the authenticity of her mortgage. Now, whether the Plaintiff admitted this or not, it was certainly not necessary for her to appear and defend her rights under her prior mortgage, and although she was kept on the record, the preamble to the District Judge's judgment and decree of 19th July 1900 clearly says there were several prior mortgagees and other persons made Defendants, but all have now been relinquished except Defendants Nos. 1 to 8 and Defendant No. 15. The decree gives in its heading the names of all 19 Defendants and there is a note that Defendants Nos. 9 to 11, 14 and 17 were struck off as per order, dated 4th June 1900, and the Defendants Nos. 1 to 8 and Defendant No. 15. The decree gives in its heading the names of all 19 Defendants and there is a note that Defendants Nos. 9 to 11, 14 and 17 were struck off as per order, dated 4th June 1900, and the Defendants Nos. 12, 16 and 18 were struck off as per order, dated 6th June 1900. This is a statement of fact and the petition of 6th June shows why No. 13 was allowed to remain on, but the fact that the District Judge unnecessarily apparently acceded to the prayer of the Plaintiff to let him impugn the authenticity of her mortgage could not render it incumbent on her to appear, her mortgage being admittedly a prior mortgage, nor could this note in the decree make her bound by its terms any more than was the pro forma Defendant No. 19 who was impleaded by the Plaintiff as his own benamdar and whose name was never expunged from the decree. 11. The test in all the cases we have had laid before us is was the Defendant impleaded as a puisne mortgagee and therefore a necessary party? If he was, he is bound to set up his prior mortgage as well as his subsequent mortgage. The decree itself is against Defendant No. 1 alone and that being so it must be taken to be in accordance with the express declaration in the judgment that at the time the judgment was passed, Defendant No. 13 among others had been given up. 12. After all the cases bearing on the point had been cited before us, it was conceded that the view we take would be unanswerable but for the latest decision of the Judicial Committee in Ibrahim Hussain Khan v. Ambika Pershad (2) where it was held that a lady, who obtained a mortgage in 1874 with possession until 1887 (the due date of payment), was a necessary party in a suit brought by the mortgagees of 3 intermediate mortgages between 1874 and February 1888 and that the omission of her heirs to put her rights in issue in those suits barred her rights under her mortgage by reason of explanation (it) of sec. 13 of the Civil Procedure Code. 13. We are unable to see that their Lord-ships of the Judicial Committee laid down any new rule embracing a simple prior mortgagee as such. 13 of the Civil Procedure Code. 13. We are unable to see that their Lord-ships of the Judicial Committee laid down any new rule embracing a simple prior mortgagee as such. It appears that Mustt. Alfan had a subsequent mortgage in 1888 and that her heirs were interested in the three intermediate mortgages and were made Defendants in the suits on those mortgages, and not having set up in those suits such rights as they had under the mortgage of 17th February 1888 and the zurpeshgi deed of 1874, sec 13, explanation (it) applied. 14. But here we are dealing with an admitted prior mortgagee who had no interest whatever in any subsequent mortgages, and we are asked now for the first time in argument before the Court to hold on highly technical grounds that the lady was impleaded as a puisne mortgagee and that a decree was passed against her. 15. We find fact that neither of these assertions had any substance in it and as a matter of law that she must be treated as a prior mortgagee pure and simple and that her rights were not affected by anything which took place in the litigation in 1900. That being so, we proceed to deal with certain minor points that were argued on the merits. 16. And first as to the share of Mahomed Buksh in the mokurari, it is admitted that he inherited 4 annas from his wife Umeda Bibi, and that according to the Defendant-Appellant's contention is all the Plaintiffs can claim in this suit. But there is evidence that three of Mahomed Buksh's sons, who admittedly inherited 1 annas each from their mother, predeceased their father, and the only question is whether those sons died unmarried. The Plaintiffs' contention that one of them was married and had two sons is based on the evidence of witness No. 4 for Defendants Nos. 50 and 74, but he was very much shaken in cross-examination and had to admit that he knew that Mahomed Buksh had 8 annas share, as he had to deal with his documents. 17. On the other hand, witness No. 1 for Defendant No. 61 clearly says that the share of three sons of Mahomed Buksh who died during his life-time devolved on him, as was held in the judgment of 1900. 17. On the other hand, witness No. 1 for Defendant No. 61 clearly says that the share of three sons of Mahomed Buksh who died during his life-time devolved on him, as was held in the judgment of 1900. It is in vain to say that this is merely the expression of an opinion on a point of law, since he is dealing with the actual facts as to the shares and tells us he was in the service of Mahomed. Buksh and that he does not know what the legal share of the sons was. 18. The Defendant No. 61 elicited the statement from him and it was carried no further though it was against the Plaintiffs' case as well as Defendant No. 27's. 19. The learned Judge's decision in the Court below on this point is rather unsatisfactory. After stating that according to Defendant No. 27 Mahomed Buksh inherited only 4 annas of mokurari, he says that three of the sons of the mortgagor died in his life-time. So that the mortgagor must have inherited something out of their shares. It is difficult, he says, to ascertain from the evidence on the record what that something is. He seems finally to hold that because the Defendant No. 27 sued on his mortgage bond making Hurmuzi Begum a party and it was held in that suit that the mortgagor had 8 annas and that 8 annas was available to satisfy Defendant No. 27's decree and was ordered to be sold for the benefit of Defendant No. 27, there is nothing on the record to show that more than 8 annas mokurari belonged to Mahomed Buksh., But it seems to us that on this finding Defendant No. 27 is estopped from denying that the share of which he took the benefit in his decree of 1900 was 8 annas. Be that as it may, the matter must be decided on the evidence before us if there is no estoppel and that evidence though meagre is perfectly clear and is only open to doubt so far as one witness imposes a wife and two children on one of the sons of Mahomed Buksh, whose existence his cross-examination goes to show was rather mythical. 20. The learned Judge was evidently dealing with the Plaintiffs' contention that Mahomed Buksh had 16 annas of the mokurari. 20. The learned Judge was evidently dealing with the Plaintiffs' contention that Mahomed Buksh had 16 annas of the mokurari. This he seems to think cannot be by reason of the judgment of 1900; but there is evidence on the record coming from the Defendant's side, that is, from the witnesses of Defendants other than No. 27 and we are inclined to the view that Defendant No. 27 cannot now be heard to say that the share was less than the 8 annas which he brought to sale under his mortgage-decree of 1900. 21. We therefore uphold the Subordinate Judge's finding on this point. The next point urged was the priority of the Defendant No. 27's claim under his assignment of Baijnath's mortgage. 22. This is clearly untenable as Baijnath's mortgage did not include any mokurari whatever. It was of certain shares of milkiat registered under certain tauzi numbers, which could not possibly refer to mokurari. That Mahomed Buksh had shares in the milkiat is clear from the evidence and is admitted by Defendant No. 27's own witness No. 1 Ahmed Reza (p. 124, paper book), who says that the milkiat belonged to Mahomed Buksh's mother. In this suit we are only concerned with the mokurari. There is therefore nothing in this point. 23. Thirdly, it was sought to be argued somewhat faintly that the story of Rs. 16,000 in silver being paid over to an old lady at her country-house was too improbable to be believed. 24. The Judge who heard the witnesses has believed it and we see nothing inherently improbable in it, having regard to the customs of this country. Notes or Government securities would not be of much use to an old lady in the mofussil, and hard cash which she could hoard in her treasure-house would be a much greater temptation to her than mere paper. Moreover, her servants, who must be presumed to have had an active hand in the negotiations, would obviously prefer money which could be handled for paying off local charges and debts as well as Government revenue. We are therefore quite prepared to hold that there was a perfectly valid assignment of the mortgage to the Plaintiffs. We have thus dealt with all the points which were raised in this appeal, and the result is that the appeal is dismissed with costs.