GOLAB CHAND Vs. SURJA PRASAD

JUDGEMENT

(1.) This appeal arises out of a suit instituted by Babu Golab Chand against Lalla Surja Narain, minor son of Chunder Kailash Saran alias Lachhanji, for enforcement of a mortgage bond, dated the 21 February 1891, executed by the said Lachhanji in favour of the plaintiff and his uncle Lal Chand for the sum of Rs. 5,000.

(2.) We have noticed this mortgage bond in our judgment in appeal from Original Decree No. 397 of 1898 (see p. 724). The plaintiff's allegation is that Lalchand died without any male or female issue, and, while living jointly with him (the plaintiff), that he has succeeded to his interest in the mortgage bond in question under the Hindu law, and that he is entitled to enforce the mortgage security against the son of Lachhanji, the latter having died.

(3.) The due date of this bond was the 19 February 1892, but the suit was not instituted until the 10 March 1898, that is to say, more than six years after that date. The plaintiff, however, claimed in the first instance, a decree for sale, and in the second place in the event of the sale proceeds of the mortgaged property being insufficient to discharge his dues in full, he asked that the balance of the decretal money might be realised from other properties of the defendant. The mortgage is said to have been given, as has been stated in our judgment in appeal from Original Decree No. 397 of 1898, for the purpose of meeting the expenses of a suit to be instituted against Salukha Deo Narain and Ram Narain Singh, and for the purpose of meeting the marriage and other expenses of the deceased. The evidence, however, shows that no suit was instituted against those individuals, nor is the evidence sufficient to show that any money was then required for Lachhanji's second marriage, his first wife having then died, and what "other expenses" there were to be met, we do not know. A question seems to have been raised in the Court below whether the second marriage of Lachhanji had not then already taken place, but the Subordinate Judge was unable to find upon the evidence that this was so. He rather held that the marriage did take place subsequent to the execution of the mortgage bond in question, though he came to no finding as to the precise time the event really happened. We agree with the Subordinate Judge in the conclusion at which he has arrived in this respect; but though the marriage may be taken to have occurred, not before, but after, the date of the mortgage bond in question, the evidence in no way satisfies us that any money was really required for the purpose. It is, however, seated by some of the witnesses on behalf of the plaintiff that at the time of the loan in question it was represented that money was required for marriage expenses, as also for meeting the expenses of a suit to be instituted against Salukah Deo Narain and Ram Narain Singh, and that enquiry was made under the orders of the plaintiff's uncle Lalchand, as to the truth of these representations. We have examined the evidence bearing upon this matter, but we are unable to find that any enquiry was made on behalf of the plaintiff and his uncle in this connection, though it is quite possible that representations were made to Lalchand that money was required for the said purposes. The plaintiff seeks to enforce the mortgage security in this case, and he is bound to show that the mortgage is binding upon the defendant. Having regard to the rulings both of the Privy Council and this Court, he could do so by showing that the debts for which the mortgage was given were "antecedent debts," that is to say, antecedent to the transaction in question, but we are unable to find upon the evidence such as it is that this was so. If then the mortgage is not binding upon the defendant, the question is whether the plaintiff is entitled to a decree declaring that the money covered by the bond may be realized out of the whole of the ancestral estate, the debt not being proved to have been incurred for immoral or illegal purposes, and it being antecedent to the suit. If the plaintiff had brought his suit within six years from the time when the bond fell due, there could be no doubt that he would be entitled to the relief which was declared as the proper relief to be granted to a party in the position of the plaintiff in the case of Luchmun Dass V/s. Giridhur Chowdhry (1880) I.L.R., 5 Cal., 855, decided by a Full Bench of this Court, and in the case of Khalilul Rahman V/s. Gobind Pershad (1892) I.L.R., 20 Cal., 328. But the suit having been instituted after the expiry of six years from the due date, we do not think, having regard to the principles laid down in those cases, that the plaintiff is entitled to such relief. A decree made, not upon the mortgage security, but upon the simple obligation created by the bond, is but a money decree, and a suit for such a relief is governed by the six years law of limitation as prescribed by the Limitation Act.