MAKSUDAN LAL SAHU Vs. NIRANJAN NATH DAS

JUDGEMENT

(1.) This is an appeal by the plaintiff who brought on 25 April 1936, a suit to recover principal Rs. 250 and interest Rs. 225 due on a mortgage bond secured on a house situated in cadastral survey plot No. 1055, in Khata No. 82 in village Lohardaga, District Ranohi. The mortgage bond was executed on 22nd December 1911, by Sheotahal Ram, ancestor of defendants 1 to 9 in favour of Banshi Sahu, the father of defendants 10 and 11. The mortgagee was put in possession of the property hypothecated of which he was under the document to remain in possession for three years after which the mortgagor was to be entitled to redeem.

(2.) It was further stipulated that the mortgagee would continue in possession until redemption and in case of dispossession there was a covenant to repay the money with interest at 15 per cent, per annum. The mortgagee assigned his interest by sale deed dated 10 February 1916 to Mohan Lal, the father of the plaintiff. Thereafter the plaintiff remained in possession of the house until 1930 when the defendants first party dispossessed him. The sons of Bansi Sahu have not contested the suit but the other defendants raised various objections to the claim, one was that by oral agreement the plaintiff was allowed to remain in possession and the usufruct of the property was to be set off against both principal and interest as a result of which the debt has been extinguished.

(3.) This defence was negatived by the Courts. Another defence taken was that the plaintiff was dispossessed in 1917 or 1918 and that the suit was barred by time whether regarded as a mortgage suit or as a suit for recovery of money on the personal covenant to repay. The Courts have found the facts otherwise holding that dispossession of the plaintiff by the defendants took place in 1930 that is just within the period of six years before the institution of the suit. A third objection was that the mortgage was a transaction contrary to Section 46, Chota Nagpur Tenancy Act, and as such was void either at the outset or, at any rate, after five years. Therefore, it was said that limitation to recover the money ran from either 1914, the date on which the mortgage money was made repayable by the bond or from 1916 if it be assumed that the possession of the plaintiff as mortgagee was valid for five years.