BENI MADHAV Vs. CHAMELI DEVI

JUDGEMENT

(1.) THE sole question raised in this second appeal arising from Original Suit No. 61 of 1961 instituted in the Court of Civil Judge, Budaun on July 12, 1961 is of limitation. Far back on October 6, 1947 one Dr. Laxmi Narain executed a mortgage in favour of the plaintiff No. 2 by a registered instrument. THE mortgage was simple; the consideration for the mortgage was a sum of Rs. 13,000/- in cash and there was stipulation for repayment with interest at the rate of 6% per annum. THE plaintiff No. 2 is the son of the plaintiff No. 1 since dead. THE plaintiffs constituted a joint Hindu family of which the plaintiff No. 1 was the karta. THE loan was advanced from the joint family fund. THE plaintiffs contended that a sum of Rs. 3,900/- had been paid by the mortgagor on October 6, 1952 towards the interest and Rs. 10/- were paid on October 3, 1958. THEse payments were allegedly endorsed on the back of the mortgage deed. THE action was for recovery of a sum of Rs. 19,831. 50 (including interest ). THE mortgagor died in or about 1960. Smt. Chameli Devi the widow contested the suit pleading that the plaintiff No. 2 had advanced a sum of Rs. 10,000/- and not Rs. 13,000/- towards mortgage. It was denied that payments or endorsements on the back of the mortgage deed were made by her husband as claimed by the plaintiffs. THE suit was also stated to be barred by limitation.

(2.) THE trial Court came to the conclusion that the consideration advanced for the mortgage was a sum of Rs. 13,000/- in cash. It held that there had been no payment as asserted by the plaintiff nor had the mortgagor made endorsement in his hand. THE loan was advanced from the joint family fund as claimed by the plaintiffs. In view of the finding that there had been no payment accompanied with endorsement asserted by the plaintiff the suit was dismissed as barred by limitation. THE lower appellate Court endorsed the finding recorded by the trial Court dated March 29, 1966 to the effect that there had been no payment endorsements made by the mortgagor. It also confirmed that the suit was barred by limitation and hence the plaintiffs' appeal was dismissed on July 21, 1971.

(3.) LEARNED counsel for the appellant urged that the claim is within limitation in view of the acknowledgment made by Dr. Laxmi Narain mortgagor as contemplated under section 19 of the Limitation Act 1908. In this connection the reliance placed by him is on the certified copy of the written statement which the mortgagor filed in original suit No. 31 of 1957 on February 9, 1959 and the statement that he made on oath dated September 18, 1959 in the same proceedings. Reference is made also to the endorsement of Sri Fakhre Alam counsel for the deceased mortgagor at the back of the deed of mortgage admitting the execution thereof. It appears plaintiff No. 1 Beni Madhav instituted original suit No. 31 of 1957 against Dr. Laxmi Narain for the recovery of certain amount on the basis of two promissory notes dated September 25, 1956 and October 20, 1956 respectively. The defendants therein put his contest. The written statement dated February 9, 1959 was filed by him in this context. In paragraph 3 of that written statement it was pleaded by him that there was no cash consideration advanced when these promissory notes were obtained but that the same were got executed in lieu of the outstandings mentioned against the deed of mortgage that he had made in favour of the plaintiff, namely, Beni Madhav. This was also the stand taken by him in his statement given on oath before the trial court in that suit on September 18,1959. Therein too his contention was that he had not received anything in cash upon the execution of the promissory notes but that the same were in liue of the outstanding amount against the mortgage deed executed in favour of the plaintiff No. 1. In the course of those proceedings the plaintiff had also placed on record the original mortgage deed dated October 6, 1947. On the back thereof Sri Fakhre Alam admittedly the counsel for Dr. Laxmi Narain the defendant made endorsement dated September 18, 1959 to the effect that the execution of bond "executed". Upon this deed of mortgage being placed on record in original Suit No. 61 of 1961 giving rise to this appeal before me, the then counsel for the respondents made endorsement dated 9th March 1971 admitting that the endorsement aforementioned was in the handwriting of Sri Fakhre Alam who had been as mentioned above, the counsel for the mortgagor in the earlier suit. These statements and the endorsements were all prior to the expiry of the limitation of 12 years commencing from October 6, 1947.