HIRALAL MARWARI Vs. CHANDRABALI HALDARIN

JUDGEMENT

(1.) On the 13 Falgoon 1295 (1888), Manee Misra, father of the defendant No. 1, executed a surety bond in favour of Kaliram Marwari father of the plaintiff. The bond recited that Janaki Debya had borrowed money from Kaliram Marwari on mortgage with possession., in lieu of interest, of a plot of land, to secure payment of interest on the money borrowed by Janaki Debya, and Manee Misra covenanted to stand surety for payment of the sum of Rs. 161 mentioned in the deed of mortgage, and stipulated that in case Kaliram Marwari were prevented from holding possession or from collecting the rents the debt due to him on the deed of mortgage would be recovered with damages from two specified plots of land, and that neither he nor his heirs would take any objection or exception thereto. The two plots of land so made liable under the surety bond were, therefore, hypothecated for the purpose indicated. The land mortgaged by Janaki Debya having been sold and the plaintiff dispossessed, he brought a suit to enforce the liability accepted by the surety Manee Misra.

(2.) The suit has been dismissed by both the lower Courts. It has been held, on the question of limitation, that the personal remedy of the plaintiff, against the defendants, is barred, and this finding has not been challenged before us. In fact, the suit was filed more than six years after the date of the plaintiff's dispossession. But the contention raised before us is that although the personal remedy is barred, it is open to the plaintiff to proceed against the ancestral property of the defendant No. 1 which was hypothecated for the father's debt incurred as a surety.

(3.) The defendant No. 1 and his father were governed by the Mitakshara Law, and the Subordinate Judge very correctly says that the only question for consideration is--whether, under the Mitakshara Law, the security bond (dated the 13 Falgoon 1295) is binding on the defendants or not. He has found that the security bond was not executed by the defendant No. 1's father on account of any antecedent debt; the debt was recklessly incurred by him without any legal necessity and not for the benefit of the family.