SUBRAYA BHANDARY Vs. JANARDHANA BHANDARY

JUDGEMENT

(1.) In this case the defendant's grandfather took an assignment of a mortgage from a creditor of the family to which the plaintiffs and defendants ancestors belonged. He simultaneously took a sale-deed of the one-third interest of one of his two brothers in the family house for Ks. 188 of which Rs. 123-8-0 represented that brother's share of the debt and thus became the full owner of that brother's share as well as his own share over which the mortgage became extinguished by merger.

(2.) He did not take any proceedings to recover the amount secured by the mortgage or a proportionate part thereof from the plaintiffs grandfather's share and his right to do so was at the date of this suit barred by limitation.

(3.) In a suit by plaintiff for partition the defendant claims to set off the amount by which the plaintiff's estate has been benefited through the defendants grandfather's omission to bring it to sale in pursuance of his rights as assignee mortgagee.