JUNESWAR DASS Vs. MAHABEER SINGH

JUDGEMENT

(1.) THIS was an action on security common in Bengal, called a mortgage bond, which appears to combine in one instrument two things, a personal obligation by the maker of the bond to pay the money, and a mortgage of property by way of pledge and security. The bond in question is dated the 21st of June, 1856, and was given by Baboo Ritbhunjun Sing, who is the Defendant No. 1 in the suit, to Mussumat Agur Koonwar. The consideration for the bond consists of the amounts which are stated to have been due Tinder five previous bonds given to the Mussumat by Baboo Dyal Singh the father of Ritbhunjun Singh. The bond recites the former bonds, and proceeds thus : " Hence, I, the declarant, do of my own accord and consent make myself responsible for the sums of money recovered by each of the five above-named bonds, principal with interest, as well as other loans, &c, in all for Company's rupees 16,511, and bind myself for the payment of the said sums of money to the above said lady." This part of the bond contains a personal obligation on the part of the maker of the bond, the Defendant No. 1, to pay the money. Then are inserted the terms of the loan: " With the consent of both parties it has been agreed upon that the interest should be paid as per detail given below, that is, the principal with interest I will pay at the rate of eight annas per cent. from the date of the execution of this bond to the end of Jeyt 1269 F.S., and from 1270 F.S. to Jeyt 1274 F.S. at the rate of Rs. 1 per cent. per mensem. Accordingly, I hereby declare and give in writing that I will positively, without any objection whatever, liquidate the said sum of money, principal with interest, in the month of Jeyt 1274 F.S., to the aforesaid lady." As far, therefore, as we have* hitherto gone in the bond, the ultimate period for payment would not accrue until Jeyt 1274. Now comes the part of the instrument which creates an hypothecation of land: " For the satisfaction of the lady, and as security for the above sums of money, I pledge and mortgage mouzahs Dhunpookhra and Bahooara original, with dependencies appertaining to talooka Athur, pergunnah Bhojepore, held and possessed by me. I and my heirs shall not, as long as the whole amount aforesaid remains unpaid, transfer them in any way." Then there is a clause to this effect: " Should the mouzahs mortgaged be sold in execution of decree or for arrears of revenue, the said lady shall in that case be at liberty, without waiting for the expiration of the term of payment, to institute a regular suit, and to sell the moveable and immoveable properties of me the declarant and my heirs, and thereby realise the amount in question." This bond was registered on the 23rd of June, 1856.

(2.) THE action is brought by Bhedi Singh and twelve other persons, who are the heirs of the Mussumat, the fourteenth Plaintiff being a person called Turmundul Bass, who had purchased a fourth share in the bond. The Defendants in the suit are, first, Ritbhunjun Singh, described in the heading of the suit as "the principal contractor of the loan," and, secondly, certain persons who are described in the same heading as " auction purchasers of the pledged property," and it may here be stated that they became such purchasers under a decree obtained upon another mortgage bond made by Ritbhunjun Singh subsequently to the bond in question, and of course subject to it. The date of the auction sale which is sought to be impeached is the 18th of May, 1865.

(3.) THE other question arises upon the period of limitation which is applicable to this case. As already observed, the instrument contains two distinct things: the obligation to pay the money, which binds the maker of it only, and the mortgage of the land; and the plaint in the present suit is properly framed upon the instrument in that aspect. It seeks to charge the first Defendant, the maker of the bond, Ribhunjun Singh, personally, and it also claims to recover the amount of the principal and interest by the sale of the mouzahs (naming them), which were the hypothecated property included in the mortgage. It is contended for the Appellant that the limitation contained in Clause 16, Section 1, of the Act XIV. of 1859, is the proper limitation to apply to the case. That is a sweeping clause, which provides thus : " to all suits for which no other limitation is hereby expressly provided, a period of six years from the time the cause of action arose." It is said that this is a suit brought to recover money lent, and the interest on that money, and that it falls within Clause 16, because, although Clause 10 applies to suits for money lent, it does not apply to them in the cases where the instrument shall have been registered within six months from the date, and this bond, having been so registered, is not within that section, and, not being otherwise provided for, falls within the limitation of six years in Clause 16. Their Lordships, however, are clearly of opinion that neither of these clauses is applicable to this suit, which is brought, in substance, for the recovery of immoveable property, or of an interest in immoveable property, and falls therefore within Clause 12 of the first section. The object of the suit is to obtain a sale of the land as against the Defendants grouped as Defendants No. 2 and No. 3, who had become purchasers under a subsequent mortgage bond. It is therefore, as against them, a claim founded not upon the contract to pay the money, but upon the hypothecation of the land. Their Lordships would have been disposed so to apply the Statute of Limitations if the matter had been res integra, but it appears from the cases to which they have been referred by Mr. Cave that there has been a long and almost uniform current of decisions in the two provinces of Bengal and Madras, giving this construction to the Act. Their Lordships must not be supposed, in coming to this decision, to give any countenance to the argument of Mr. Araihoon that this suit would have been barred if the limitation of six years under Clause 16 had been applicable to it. They think, upon the construction of this bond, there would be good reason for holding that the cause of action arose within six years before the commencement of the suit. However, it is sufficient to say that their Lordships think the limitation applicable to the case is that under Clause 12, Section 1, of the Limitation Act.