ANNADA CHARAN MISRA Vs. JHATU CHARAN ROY

JUDGEMENT

(1.) This appeal is on behalf of defendants 4 to 9 and is directed against a mortgage decree passed by the learned Subordinate Judge, 3 Court, Midnapur. The suit was instituted by the plaintiff on a mortgage bond executed in favour of his predecessor-in-interest by one Hari Manna on 7 April 1914. Hari is the father of defendants 1 and 2 and grandfather of defendant 3. Hari took from the plaintiff's predecessor-in-interest on that date a loan of 40 maunds of paddy and promised the repayment thereof with interest at the rate of 11 seers per maund with annual rests within one year. He secured the repayment of the paddy lent to him by mortgage of his properties. On the death of Hari his properties were inherited by his heirs, namely his sons defendants 1 and 2 and his grandson defendant 3. Defendants 4 to 9 are the subsequent mortgagees from defendants 1 to 3 and the suit being a suit to enforce the mortgage they have been impleaded on that footing.

(2.) The suit was instituted on 15 January 1930 admittedly beyond 12 years of the date of the period limited in the mortgage bond for repayment and under the rules of pleading the plaintiff was required to state how limitation was saved. For the purposes of saving limitation he pleaded that on 21 January 1916 Hari delivered to him 11 maunds of paddy and the fact of the said delivery was shown by an endorsement made on the back of the mortgage bond by Hari's son, defendant 1. This part payment does not save limitation because it is beyond 12 years of the date fixed for repayment. The plaintiff further pleaded that in February 1923 six maunds of paddy were delivered by defendant 1. Hari having died in the meantime. Defendant 1 made the delivery and endorsed the repayment on the back of the mortgage bond purporting to act both on behalf of himself and on behalf of defendants 2 and 3. He further alleged that there was delivery of eight maunds of paddy in February 1926 by way of interest by defendant 1 purporting to act on behalf of himself and on behalf of defendants 2 and 3 and he had made endorsement on the back of the mortgage bond on behalf of himself and as agent on behalf of defendants 2 and 3. The Court of first instance held that defendants 2 and 3 were not present at the time of the delivery by defendant 1 of six maunds of paddy in February 1923 nor at the date of delivery of eight maunds of paddy by defendant 1 in February 1926. It also held that there was nothing to prove that defendant 1 made the delivery of paddy on these two occasions as an authorised agent of defendants 2 and 3. In this view of the matter the suit was decreed in part by the learned Munsiff against defendant 1 to the extent of one-third share of the claim and against the mortgaged properties to that extent as against defendants 4 to 9. It further directed that in default of payment within the period of grace one-third share of the mortgage properties which admittedly belong to defendant 1 was to be sold. The suit was dismissed by the learned Munsiff as against defendants 2 and 3 on account of limitation. The plaintiff appealed to the learned Subordinate Judge. The learned Subordinate Judge first of all took up the question as to whether defendants 2 and 3 were present at the time when defendant 1 delivered the paddy to the plaintiff in February 1923 a February, 1926.

(3.) The evidence with regard to that in his opinion was conflicting but when he says that it would be probable in the course of events that defendant 2 and 3 would also be present at the time of delivery. It is doubtful whether these observations were made on the evidence or were surmises on the part of the Subordinate Judge. But assuming that he means to find on evidence that defendants 2 and 3 were present at the time when paddy was delivered to the plaintiff in February 1923 a February, 1926 that would not save limitation unless it could be proved that defendants 2 and 3 also made the delivery or defendant 1 made the delivery being authorized by defendants 2 and 3. The mere presence of defendants 2 and 3 at the place of delivery would not necessarily bring the case within Section 20, Lim. Act.