HAKIM RAHMAN BUX Vs. MUHAMMAD MAHMOOD HASSAN

JUDGEMENT

(1.) This appeal has been on behalf of the plaintiff Hakim Rahman Bux, against the decision of the first Additional Subordinate Judge of Bhagalpur dated the 7th February, 1949 reversing a decision of the Munisif, 1st Court, Bhagalpur, dated the 31st May, 1948.

(2.) The question debated in this appeal is whether the suit of the plaintiff is barred under Article 132 of the Limitation Act or whether Section 20 of the Limitation Act applies and a fresh period of limitation should be computed from the date of payment made by defendant No. 1, Muhammad Mahmood Hassan one of the sons of Mahboob Ali, who had borrowed the money from the plaintiff on the basis of the mortgage bond dated the 25th of February, 1923. It appears that Mahboob Ali died and was succeeded by his heirs, namely, his widow, defendant No. 4 who had an interest to the extent of 4 annas, three sons, who had each ah Interest of 3 annas 6 pies, and all his daughters, who had an interest to the extent of 1 anna 9 pies each. It has been found by the lower court that defendant No. 1. had made part payments from the 13th of March, 1925, to the 20th of October, 1940, the total amount being Rs. 2000/ -. It has also been found by the lower appellate court that defendant No. 1 did not make the payments as an agent on behalf of the other defendants. In these circumstances, the question arises whether the suit is barred by the provisions of Article 132 of the Limitation Act. The lower appellate court has found that payment was made only by defendant No. 1 who was not liable to pay the whole debt and who did not make the payment as an agent on behalf of the other defendants. Defendant No. 1 had paid more than his own share of the debt and therefore a decree cannot be granted in favour of the plaintiff as against him. As against the other defendants, the suite was barred by limitation, since section 20 of the limitation Act was not applicable.

(3.) In support of this appeal Counsel for the appellant put forward the argument that the payment by defendant No. 1 was payment made on behalf of all the other defendants, that the mortgage debt was one and indivisible and that payment made by defendant No. 1 saved limita-tation even with regard to the other defendants who are liable to pay the mortgage debt. In support of this proposition, Counsel relied upon Badri Das v. Pasupati Banerji ILR 12 Pat 93 : (AIR 1933 Pat 1) (A) and Baijnath Prasad v. Sati Lal Sahu 19 Pat LT 240: (AIR 1938 Pat 383) (B). But we are unable to accent the argument of learned Counsel for the appellant as correct. The legal position in the Muhammadan law 4s that upon the death of a Muhammadan the whole estate devolves upon his heirs at the moment of his death and the heirs succeed to the estate as tetants-in-common in specific shares. It is also established that each heir of a Muhammadan is liable for the debts of the deceased to the extent only of a share of the 'debts proportionate to his share of the estate (sections 1 and 43 Muha's Mohammadan Law, 13th edition, at pages 32 and 35). The cases upon which counsel for the appellant relied, namely ILR 12 Pat 93: (AIR 1933 Pat 1) (A) and 19 Pat LT 240 : (AIR 1938 Pat 383) (B) , must be distinguished because these were cases relating to Hindu joint families. We hold, on the other hand, that the present case is governed by the principle laid down in Hakim Saiyid Fida All v. Rani Bhuvaneshwari Kuer ILR 20 Pat 770: (AIR 1942 Pat 73 (C). It was laid down by a division Bench of this court in that case that though the mortgage contract was indivisible, there might be cases where the mortgage security becomes split up. One such case was where a Muhammadan mortgagor dies and his heirs succeed to the share of the property according to the shares defined in the Muhammadan Law. In such a case there is no reason why the mortgagee could not give up his mortgaged lien on the share of any one of the mortgagors by making a proportionate deduction of the mortgage money and enforce his mortgage for the balance as against the shares of the other heirs who are on the record. That is the ratio of the decision in ILR 20 Pat 770: (AIR 1942 Pat 73) (C). There is also a similar decision of another Division Bench of the Pa,tna High Court consisting of Roe and Jwala Prasad JJ in Sarabnarain Das v. Top Ojha, AIR 1918 Pat 646 (1) (D). It was held in that case that a payment by one of several co-mortgagors owning separate interests in the mortgaged property did not extend limitation against the others. There is a decision of the Madras High court in Muthu Chettiar v. Moha-mmad Hussain AIR 1920 Mad 418 (E) , expressing the same view. The learned Judges who decided that case (Spencer and Seshagiri JJ. ) referred with approval to the decision of the Patnar High Court in AIR 1918 Pat 646 (1) (D) and added that there was no distinction in Indian law between the case of co-mortgagors and co-mortgagees and there was also no distinction between simple debts and real debts as contemplated by the English statute of limitation. It was also explained by the learned Judges in that case that Section 21 of the Limitation Act Is really an explanation to Sections 19 and 20 of that Act, The object of that explanation was to provide that one only of the contracting parties shall not ordinarily impose a liability on the other by anything done by him. Limitation, whether treated as a right or a disability was prima facie personal, and unless the legislative so provided, a cooperative right or liability should not be imposed. We should also refer in this connection to another case Asizur Rahman Osmsni v. Upendra Nath Samanta, 42 Cal WN 18: (AIR 1938 Cal 129) (F) where a similar principle of law has been laid down. There is also a decision of a Full Bench of the Allahabad High Court. Muhammad Taqi Khan v. Raja Ram ILR 1937) All 272 : (AIR 1936 All 820) (G) which is a decision of Sir Shah Muhammad Sutaiman C. J. and Rachpal Singh and Allsop JJ. It was observed by the Full Bench in the course of their Judgment that It made no difference in Indian law whether the co-morta gors are the original mortgagors themselves or whether they or some of them are the heirs or transferees of the original mortgagors. If at the time when the acknowledgment in question is made, the relation of joint contractors existed between the persons who were liable, then it is quite immaterial whether they were the original contractors or whether they were their legal representatives. In our opinion, the law has been correctly laid down in the series of decisions to which we have referred. Applying the ratio of these decisions to the present case, it is manifest that the suit of the plaintiff is barred as against all the defendants, except defendant No. 1 under Article 132 of the Limitation Act. As regards defendant No. 1 himself, it is the admitted position that he has paid more than his quota of the debt and the plaintiff cannot be granted a decree also against defendant No. 1.