DHANI SAHU Vs. BISHUN PRASAD SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a mortgage suit which has been dismissed by the learned Subordinate Judge of Gaya. The mortgage bond which was the subject-matter o? the suit had been executed by one Basdeo Prasad Singh on 9th August 1909 to secure a loan of Rs. 2000 by mortgaging certain properties. Basdeo Prasad Singh died in 1910 leaving two minor sons Bishun Prasad Singh and Pasupat Prasad Singh who have been impleaded as defendants 1 and 2 in the suit. During the minority of these defendants, their mother Deolochan Kuer was appointed their guardian by the District Judge. On 1 August 1918 Mt. Deolochan Kuer and Jagdeo Prasad Singh, a separated brother of the deceased Basdeo Prasad, executed a sale deed (Ex. F) in respect of certain properties including the properties mortgaged under the bond in suit to the plaintiffs and another creditor of theirs, after obtaining the sanction of the District Judge. On the date of the sale deed the amount due under the mortgage was calculated to be Rs. 5594-4-0 and this was stated in the deed to be part of the consideration.

(2.) On 28 April 1928 Bishun Prasad Singh who had now attained majority brought a suit for the cancellation of the sale deed on behalf of himself and his minor brother defendant 2. The suit was decreed by the Subordinate Judge who held among other things (1) that the directions of the District Judge with regard to the sale had not been strictly followed; (2) that many of the debts for the payment of which the sale deed was executed had been incurred by Jagdeo after the death of Basdeo and some of them had been incurred after the appointment of Deolochan as the guardian of the minor sons of Basdeo and so they could not possibly bind the estate of the minors; (3) that Jagdeo had acted fraudulently towards the minors by saddling the estate with his personal debts; (4) that most of the debts, recited in the sale deed (Ex. F) did not appear in the schedule of debts on which the sanction of the District Judge was based and (5) that the order of the District Judge appointing Mt. Deolochan as guardian of the minor and sanctioning the sale had been obtained at the instance of the plaintiffs. These findings were virtually upheld on appeal which came before the late Chief Justice and myself. The learned Chief Justice who delivered the judgment in the appeal pointed out that these plaintiffs were old creditors of Jagdeo and in view of the fact that they had themselves insisted on the appointment of the guardian they were, if not parties to the fraud by Jagdeo on the minors, certainly possessed of information which should have put them on their guard. After the decision of the appeal the plaintiff on 16 June 1936, brought the present suit which has been dismissed by the learned Subordinate Judge on the ground of limitation. The main question which has therefore to be decided in the present appeal is whether the suit is barred by limitation.

(3.) The plaintiffs have put forward two grounds to show that the suit is not barred by limitation, notwithstanding the fact that it was brought nearly 27 years after the execution of the mortgage bond. It is said in the first place that the effect of the decree in the suit brought by Bishun Prasad for the cancellation of the sale deed Ex. F was that the rights of the plaintiffs as well as the liabilities of the defendants under the mortgage bond were revived, and secondly, that the plaintiff's rights under the mortgage bond had been kept alive by repeated acknowledgments of the debt due under the bond. The defendants on the other hand contend that the plaintiffs having with their eyes open entered into a transaction which purported to discharge the mortgage bond, cannot be allowed to say that the mortgage bond is still alive specially as they were, if not party, at least privy to the fraud practised by Jagdeo upon the mini or; and further that the alleged acknowledgments are not binding upon the minor.