MONIMALA DEVI Vs. INDU BALA DEBYA

JUDGEMENT

(1.) Rajkumar Ran Bahadur Singh - hereinafter called the 'mortgagor' was the proprietor of a five annas share in Tauzi No. 16 of Mauza Bansjora, eight annas share in Mauza Simitanr and certain interest in Mauza Bahaldih all in District Manbhum. The mortgagor had leased 200 bighas of coal-bearing land out of his holding in Mauza Bahaldih to certain lessees for an annual royalty of Rs. 2,000/- payable in two equal instalments, the first in the month of Aswin of the Vikram year and the second in the month of Chaitra. On June 14, 1922, the mortgagor borrowed Rs, 5,500/- from one Rabindra Nath Chakravarty and executed a deed of mortgage whereby he agreed personally to repay the amount, and encumbered his share in Mauzas Bansjora and Simitanr for repayment of the amount borrowed with interest at the rate of Rs. 1/8/- per mensem, and further agreed that in default of payment, the mortgagee do recover the amount due by sale of his interest in Mauza Bansjora. Simitanr and Bahaldih. By the mortgage-deed the mortgagor also agreed that the mortgagee do receive the amount due as royalty from the tenants under mining leases in Mauza Bahaldih in the month of Aswin. By another deed dated August 27, 1922, the mortgagor created a mortgage in favour of Sasindra Nath Chakravarty and Indra Nath Chakravarty to secure payment of Rs. 5,500/- advanced to him and interest thereon. The covenants of this mortgage deed were substantially the same as the covenants of the earlier mortgage-deed dated June 14, 1922, and it was agreed that the mortgagees were to receive the instalment of royalty payable in Chaitra in respect of Mauza Bahaldih. Under these mortgage-deeds the due date for payment was April 14, 1925.

(2.) On May 17, 1927, the mortgagor assigned his interest in Mauza Bansjora to one Mahendra Nath Rai and on October 2, 1927 he assigned his interest in Mauza Simitanr to one Pushpa Moyee Devi. Thereafter in execution of a money decree obtained against the mortgagor, his right, title and interest in Mauza Bahaldih was sold on January 16, 1937, and after the sale was confirmed, possession of Mauza Bahaldih was taken by the auction-purchaser on April 7, 1937. By two deeds dated June 18, 1946, Manimala Devi - the plaintiff in the suit out of which this appeal arises - obtained assignments of the rights of the mortgagees under the two deeds dated June 14, 1922, and August 27, 1922, and filed a suit on July 12, 1946, in the Court of the Subordinate Judge at Dhanbad for a decree for enforcement of the two mortgages by sale of the mortgaged properties. To the suit were impleaded as defendants the representatives of the original mortgagees, the heirs of the mortgagor and certain alieneces of the mortgaged property.

(3.) The suit was filed more than twelve years after the date on which the mortgage amount became payable, and prima facie, it was barred by the law of limitation. But the plaintiff sought to bring the claim within limitation, relying upon certain part payments towards the mortgage dues made by the mortgagor. On the deed dated June 14, 1922, was recorded an endorsement dated April 1, 1937, relating to payment of Rs. 600/- as interest which was signed by the mortgagor. On the mortgage-deed dated August 27, 1922, there was recorded an endorsement dated August 16, 1934, of payment of Rs. 100/- which also was signed by the mortgagor. The plaintiff relied upon part payments, evidenced by these endorsements to extend the period of limitation in respect of the two mortgage claims.