BENI MADHAV Vs. CHAMELI DEVI

JUDGEMENT

(1.) The sole question raised in this second appeal arising from Original Suit No. 61 of 1961 institutued 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.) Aggrieved the plaintiffs have preferred this second appeal.