KHUBILAL Vs. MALOOMSINGH

JUDGEMENT

(1.) THIS is a plaintiffs' second appeal in a suit for redemption of a mortgage and a learned single Judge before whom the appeal came originally has referred it to a division Bench.

(2.) THE suit out of which this appeal arises has had a chequered history. The suit was brought in the first instance in 1941 in a Court of the former State of Udaipur. It is unnecessary for the purposes of the present appeal to give the history of this case in detail. It is enough to say in this connection that the District Judge of pratapgarh by his judgment dated 21-9-1931, without deciding any other issues which arose in tin's case, himself raised the question of limitation and holding that the plaintiffs had brought their suit a hundred years after the execution of the mortgages which they sought to redeem dismissed it. The plaintiffs then came in appeal to this Court, and a Division Bench to which one of us was a party held by its judgment dated 25-11-1952 that the manner in which the learned District Judge disposed of the suit was not correct and that before dismissing the suit on the ground of limitation he should have considered the effect of Section 22, Mewar Limitation Act which had a bearing on the question of limitation and also of a notification dated 14-5-1940, by which the 8 years' period of grace allowed by Section 22 was further extended by one year, that is, up to 30-8-1941. The Bench, therefore, directed that the order of the District Judge be set aside and the suit remanded for determination of the question of limitation afresh. It was also pointed out that as the original mortgagors had been brought on the record some time in May, 1942, that factor should also be considered while deciding the question of limitation. A further direction was given that if the trial Court came to the conclusion that the suit was within limitation it would be in the interests of justice to allow both parties to lead such evidence or further evidence as they may desire to do. The case was sent back for fresh disposal in accordance with the aforesaid directions to the Civil Judge, Udaipur.

(3.) BEFORE we proceed further, we may state a few facts relevant to the matters which we are called upon to consider. The suit relates to the redemption of two mortgages with respect to certain properties described in the plaint which are said to belong to the deity of Shri Shitalnathji Maharaj. The plaintiffs' case is that with respect to one of these properties a usufructuary mortgage was made on behalf of Shri Shitalnathji Maharaj in favour of Daulji motichandji for Rs. 1201/- by a deed dated Smt. 1896 Asoj Sudi 9 and another mortgage was made on the same date with respect to the remaining property for rs. 901/- in favour of Lalji Kalyanji, and later Lalji Kalyanji made a sub-mortgage thereof in favour of Daulji Motichandji. Then about a hundred years later Smt. 1997 one Ranglal on behalf of Shri shitalnathji Maharaj made a second mortgage of the properties in question in favour of the plaintiffs for a sum of Rs. 3256/4/-by a registered deed of mortgage dated Smt. 1997 Jeth Vadi 13. It is important to bear in mind that by this deed a sum of Rs. 2102/- making up the amount of the two previous mortgages namely of Rs. 1201/- and Rs. 901/- was left with the plaintiffs to pay off these earlier mortgages. The plaintiffs impleaded as defendants the heirs of Daulji Motichandji who were defendants 1 to 6 in the original plaint and the heirs of Lalji Kalyanji who were defendants 7 to 9 therein. The plaintiffs did not impleacl the original mortgagor as a party to their suit and defendants 10 to 14 as representatives thereof were subsequently impleaded as defendants in May, 1942. The last-named defendants allowed the suit to proceed ex parte against them. The other defendants resisted the suit on a number of grounds but with those grounds we are not concerned for the purposes of this appeal.