UMESH CHANDRA MONDAL Vs. HEMANGA CHANDRA MAITY

JUDGEMENT

(1.) The plaintiffs in the suit out of which this appeal has arisen prayed for a decree for sale of properties mortgaged by defendant 1 in the suit. The mortgage was executed in favour of Srinath Maity on 14 Chaitra 1314 A.S. and all the plaintiffs are interested in the same as members of a Hindu joint family. The properties mortgaged consisted of several plots of land, and we are only concerned with plots 6, 7 and 8 mentioned in the plaint. The plaintiffs claim in suit was resisted by the defendants. The mortgagor, defendant 1, raised all possible defences available to him, including the satisfaction of the mortgage debt. It may be mentioned that all the pleas raised by defendant 1 have been overruled by the Courts below, and the appeal before us does not relate to the case sought to be made out by defendant 1. Defendants 4 to 9, 11 and 12, appellants in this Court, contested the suit as persons claiming through one Baidyanath Mondal, the purchaser of plots 6, 7 and 8 from defendant 1 and his brother Chaitanya Charan Sow, by two different kabalas executed on 10 Agrahayan and 14th Agrahayan 1316 B.S. It was alleged that after the purchase by Baidyanath, there was recognition of the transfer by the plaintiff s, who were cosharer landlords in respect of the properties purchased from defendant 1 and his brother. A question of estoppel was raised by the defendants so far as this part of the case was concerned. The defendants pleaded limitation, and contended that the suit instituted after the expiry of twelve years from the date fixed for payment of the mortgage money was barred by time.

(2.) A question of marshalling also appears to have been attempted to be raised by the defendants. The position sought to be taken up by them in this part of the case was this: that their predecessor-in-interest was a bona fide purchaser of a portion of the mortgaged properties without notice of the plaintiff's mortgage, and they were therefore entitled to the benefit of the doctrine of marshalling, and that at any rate the properties 6, 7 and 8 of which they were purchasers should be sold, if necessary, after the other mortgaged properties had been sold. Another aspect of the case for defendants 4 to 9, 11 and 12 arising out of events that happened in the course of the suit, and during its pendency in the trial Court, requires notice. One of the defendants No. 10 died on 10 August 1927. The two brothers of that defendant already on the record were substituted in his place as the legal representatives of the deceased defendant; but the mother of defendant 10 was not brought on the record. On this state of facts it was sought to be made out that the suit should have been dismissed on the ground of non-joinder of necessary party.

(3.) The trial Court totally negatived the defence of the contesting defendants in the suit, and passed a mortgage decree in favour of the plaintiff's in usual terms, directing the sale of the mortgaged properties in default of payment of the mortgage debt in terms of the decree. On appeal by defendants 4 to 9, 11 and 12 the learned Additional District Judge modified the decision and decree passed by the trial Court on the ground that the suit had abated so far as the mother of the deceased defendant 10 was concerned, and reduced the amount of the mortgage debt recoverable by the, plaintiffs in the suit by the amount of Rs. 65. Defendants 4 to 9, 11 and 12 have appealed to this Court, and cross-objections have been preferred by the plaintiffs in regard to the reduction of the mortgage debt recoverable by them by Rs. 65 as mentioned above. (The question of estoppel was held against the defendants on facts and the judgment proceeded). The plea of limitation raised by the defendants rested, as indicated above upon the fact that payments made towards the satisfaction of mortgage debt after the purchase of Baidyanath Mondal in 1316, could not be of any avail to the plaintiff s, seeing that the suit was instituted more than 12 years after the date fixed for repayment of the mortgage money. Reliance was placed on Newbould V/s. Smith (1886) 33 Ch D 127, in support of this position. That case no doubt is an authority for the proposition that payment of interest by the mortgagor who remained liable, ex contractu to pay the debt, though he had previously assigned the mortgaged property to a third person was in a suit to enforce the mortgage security, held to be insufficient to keep alive the mortgagee's claim against the assignee and the mortgaged property. The decision in Newbould V/s. Smith (1886) 33 Ch D 127 is in conflict with the view expressed on the subject by the Privy Council in Lewin V/s. Wilson (1886) 11 AC 639, and the correctness of the decision was questioned before the House of Lords [see Newbould V/s. Smith (1889) 14 AC 423 at pp. 426 and 428]; but their Lordships did not express any opinion on the decision one way or the other. So far as this Court is concerned Newbould V/s. Smith (1886) 33 Ch D 127 has not been followed, and Lewin V/s. Wilson (1886) 11 AC 639 was given the preference in a suit for possession under Art. 146, Sch. 2, Lim. Act, 1877, Domi Lal V/s. Roshan Dobey (1907) 33 Cal 1278. The Limitation Act has to be followed by Courts in India in considering the rules of limitation applicable to a case; and whereas in a case like the one before us, there is sufficient guidance given by the provisions contained in Secs.19 and 20, Lim. Act, there would be no justification in our borrowing rules of limitation from decisions by Courts in England, based upon a statute altogether different in language from the statutory provisions contained in Secs.19 and 20, Lim. Act. Furthermore, in the case before us, the purchaser defendants were transferees from the mortgagor in respect of a portion only of the mortgaged property, consisting of several items; and in such a case, there can bo no doubt that the rule laid down by the House of Lords in Chinnery V/s. Evans (1864) 11 HLC 115 at p. 135, namely, that where estates A, B and C are included in one mortgage, and the owner of A pays interest, the mortgagee's remedy against B and C is preserved, is the rule that must be applied.