INDU BALA DEBYA Vs. MONIMALA DEVI

JUDGEMENT

(1.) This appeal by defendant 4 is directed against the judgment and the decree of the learned Subordinate Judge of Dhanbad decreeing the suit of the plaintiff.

(2.) The only point raised before us in this appeal is one of limitation. In order to appreciate this point it would be necessary to give a concise statement of facts leading to the institution of the suit out of which this appeal arises. Rajkumar Thakur Ranbahadur Singh of Ram-nagar Garh in the district of Manbhum, hereinafter to be referred to as the mortgagor, was the proprietor of the Barora Estate bearing tauzi No. 16 of collectorate and district Manbhum known as third Kismet of pergana Nawagarh which included amongst other properties 5 annas milkiat share in mauza Bansjora, eight annas milkiat share in mauza Simatanr and ' certain milkiat interest in mauza Bahaldih otherwise known as Bahiardih. He had leased out 200 bighas of coal lands in mauza Behaldih with certain lessees from whom he was receiving annually a sum of ' Rs 2,000 as royalty payable in two kists of Rs. 1,000 each, one in Aswin and the other in Chaitra. On 14-6-1922, he took a loan of Rs 5 500 from one Rabindra Nath Chakravarty, defendant 16, on the basis of a mortgage bond, Ex. 1. On 27-8-1922, he took another loan of Rs. 5,500 from Sashindra Nath Chakravarty, defendant 17, and Indranath Chakravarty, whose heirs are defendants 18 to 21, on the basis of another mortgage bond, Ex. l(a). In both these mortgage bonds he mortgaged his' entire milkiat interest in mauzas Bansjora and Simatanr. The due date of payment under both the mortgage bonds was 14-4-1925. On 17-5-1927, Mahendra Nath Rai, the husband of the appellant, purchased the entire milkiat interest of the mortgagor in mauza Bansjora in execution of a money decree. He got his name mutated in the Land Registration Department and on his death the name of the appellant was mutated in his place. On 2-10-1927, the mortgagor sold his entire interest in mauza Simatanr to one Puspa Moyee Dasi, defendant 11. At the trial it was contended on behalf of the plaintiff that the sale deed executed in her favour was a fraudulent and collusive transaction. The learned Subordinate Judge, however, did not accept this contention, and held that it was not collusive and fraudulent. This finding has not been challenged before us by Mr. Sinha appearing for the plaintift-res-pondent. On the 31st of Sraban, 1341 B. Section, corresponding to 16-8-1934, the mortgagor made payment of Rs. 100 towards the dues of the second mortgage bond, Ex. Ha), and made an endorsement oi payment on the back of that bond, Ex. 1 (c). Similarly on, the 18th of Chaitra, 1343 B. Section, corresponding to 1-4-1937, he made payment of Rs. 600 towards interest payable under the first mortgage bond, Ex. 1, and made an endorsement of payment on its back, Ex. Kb). On 18-6-1946, by two 'deeds of assignment, Exs. 5 and 5(a), the plaintiff acquired the right, title and interest of the mortgagees of the aforesaid two mortgage bonds. He thereafter filed the present suit on 12-7-1946, for realisation of the mortgage dues under both the mortgage bonds by sale of the mortgaged properties.

(3.) According _to the case of the plaintiff, as disclosed in the plaint, the property described in Sch. A, namely, the mortgagor's interest in mauzas Bansjora and Simatanr, was mortgaged or hypothecated for the principal and interest of both the mortgages and the mortgagor also gave the mortgagees a right to realise royalties from the lessees of 200 bighas of coal lands in village Bahaldih, referred to above, for the satisfaction of the interest on the aforesaid principal amount. Her further case is that the Aswin kist of the said royalties was hypothecated in the first mortgage and the Chaitra kist in the second mortgage. She claimed to save limitation on the ground of the two payments of Rs. 100 and Rs. 600 referred to above. In this suit she impleaded as many as twentyone defendants describing defendants 1 to 15 as principal defendants and defendants 16 to 21 as pro forma defendants. The pro forma defendants are the assignors of the mortgage bonds in question and they, by their two separate written statements supported the claim of the plaintiff. The other defendants are the heir and other relations of the mortgagor, since1 deceased, the subsequent purchasers of the mortgaged properties and several other persons who, .according to the plaintiff, claim under certain collusive transactions, to have some interest in them. All of them, except defendants 2, 11 and 15, contested the suit. They filed seven sets of written statement and took various pleas to defeat the claim of. the plaintiff, one of which, with which aione we arc concerned in the present appeal, was that the suit was barred by limitation. All these pleas were overruled by the learned Subordinate Judge. He, therefore, decreed the suit in favour of the plaintiff. Against that decree the defendant 4, whose husband had purchased village Bansjora in execution of the money decree as stated above, has come up in appeal to this Court.