PHUL SINGH Vs. BHOJRAJ

JUDGEMENT

(1.) This second appeal arises from a suit which was based on a simple mortgage- deed executed by one Sadho Singh in 1902. The plaintiffs are the descendants of the original mortgagee, and according to them the property mortgaged was joint family property and the mortgage was executed by the manager of the family for legal necessity. The following genealogical table will show how the various members of the family are affected:

(2.) In 1910 there was a dispute in the family about the liability of the various members for this and other debts, and the question was referred to arbitration, apparently on the 1 of March 1910; and the arbitrators gave an award on 3rd December 1910, apportioning the liability. Phul Singh and Jang Bahadur Singh alone failed to pay the amounts for which the arbitrators had found them to be liable. The plaintiffs, therefore, filed this suit on 1 March 1922. against Phul Singh and Jang Bahadur Singh, but they also impleaded the other members of the family and the subsequent mortgagees, as a decree was desired for sale of the entire property mortgaged. Phul Singh alone contested the suit, and it is he who has filed the present appeal. The mortgage-deed of 1902 was found by both the Courts below to be genuine and for consideration, and it appears that in the arbitration proceedings of 1910 it was found to have been executed for legal necessity. These points have not been argued before us. The trial Court gave the plaintiffs a decree for sale of one-third of the property mortgaged on the ground that one third of the joint family property was the share of Gurdat Singh, the father of the two defaulters. This decree was upheld in the Court of first appeal.

(3.) The only ground of appeal that has been seriously argued before us is the one of limitation. The mortgage-deed having been executed in 1902; and the suit having been filed in 1922, it would clearly be barred unless there were some special circumstance to save it. It has been held by the Courts below that the agreement to refer this dispute with others to arbitration in March 1910, together with the award, amounted to an "acknowledgment" which would start a fresh period of limitation under Section 19 of the Limitation Act. This finding is disputed. The deed of reference to arbitration is not in evidence, having been lost; but the Courts below have admitted secondary evidence which proves that the appellant and the other members of his family had executed the agreement of reference and had asked the arbitrators to determine whether they were liable for the debt in suit and for other debts. The original award of the arbitrators, which is registered, had also been lost; but a copy of this was admitted in evidence, and shows that the appellant, as well as the others, were liable, and apportioned the amount among them.