DESAI NARSILAL CHATURBHUJDAS Vs. MAJMUDAR HIRALAL ICHHALAL

JUDGEMENT

(1.) THIS is an appeal from a judgment and decree dated January 21, 1909, of the High Court of Judicature of Bombay, which affirmed with a slight modification a judgment and decree of the Court of the District Judge of Broach, dated March 12, 1906. The main question is whether the present suit is barred by the Indian Statutes of Limitation. The Courts below have held that it is not so barred, and from this decision the appellants (who were defendants in the suit) appeal.

(2.) THE facts of the case so far as they are relevant to the present appeal are very simple. The mortgage in question was executed on November 4, 1793. By that deed Desai Partibrai Mujatrai, the predecessor in title of the respondents, mortgaged with possession a certain desaigiri dastur and certain pasaeta lands situated in the district of Broach to the predecessor in title of the appellants. In 1803 the district of Broach finally came under British rule, and subsequently the desaigiri dastur in Broach was commuted into a money allowance, payable from the Treasury. Since that settlement the appellants have received the money allowance in lieu of the desaigiri dastur.

(3.) IT will suffice to examine one of such acknowledgments, namely, an entry in a receipt book relating to the payment on June 8, 1848, of the allowance which is above referred to in respect of the year ending May 1, 1843. The mortgagees of the desaigiri dastur had in ordinary course procured the entry of their names in the Collector's books as mortgagees under the mortgage in question, they being entitled to the payment of the annual allowance into which the original rights had been commuted. Consequently the payments of the periodical instalments of that allowance were regularly made to them as such mortgagees as they fell due. The rights of the mortgagees were at that time vested in somewhat unequal shares in two persons named respectively Lalita Kuvar Lallubhai and Mansukhram Nandkishordas. The entry in the book of the Government agent entrusted with the payment of the allowance states, that the payment is made to "the undermentioned mortgagees of Desai' Partibrai Mujatrai," and there follow the names of the two above-mentioned mortgagees. The amounts of the shares belonging to each of these mortgagees are set against their names, and against these shares the mortgagees have in their own handwriting written their respective names in acknowledgment of the receipt of their shares. Their Lordships are of opinion that this is clearly an acknowledgment by them that they received these payments as being the parties interested in the original mortgage, and that their interest in the property was that of mortgagees thereunder. It follows, therefore, that this created a new period of limitation starting from June 8, 1843, and inasmuch as the present suit was instituted on October 16, 1901, it brought within the pre scribed period.