SIARAM SINGH Vs. JUGUTDEO SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit to enforce a simple mortgage dated the 4th May, 1931.

(2.) The mortgage in question was executed by the predecessor of defendants 1 and 2 (defendants first party) in favour of Bechan, deceased father of defendants 8 and 9 (defendants fourth party), for Rs. 175/- repayable by the 15th of Baisakh, 1339 Fasli (April-May 1932) with interest at 2 per cent, per mensem. The plaintiffs are the transferees of the entire, mortgaged interest from Be-chan's sons defendants 8 and 9 under a 'bechinama' dated the 26th October, 1943. It is, however, now conceded that the mortgage, though executed in favour of Bechan alone, was taken by him on behalf of the joint family consisting of himself and his brother Birju. Defendants 3 to 8 (defendants second party) and defendant No. 7 (defendants third party) are subsequent transferees of portions of the mortgaged property. The suit was instituted on the 4th February, 1944, claiming Rs. 350/-, that is, Rs. 175 as principal and Rs. 175/- as interest; the remaining interest due was given up in view of the provisions of the Bihar Money Lenders Act.

(3.) The suit was contested by defendant No. 3 alone (who will be referred to hereinafter as the defendant). His defence, so far as material to this appeal, was that by a partition between the mortgagee Bechan and his brother Birju, a half share in the mortgage bond in suit was allotted to Birju, since deceased, and therefore his son Jadu was a necessary party. The plaintiffs accordingly amended their plaint and impleaded Jadu as defendant No. 10 on the 19th December, 1944, by which date the period of limitation had expired. Thereupon the defendant took the further plea that the suit was barred by limitation.