SHIAM LAL Vs. MTHUKUM KUAR

JUDGEMENT

(1.) Two points have been argued in this appeal. One is one of limitation and the other as to the nature of possession held by the defendant-appellants. The fourth ground of appeal could not be explained to me and it must therefore be taken that it was abandoned. The admitted facts are very briefly these: Certain persons, who occupied the position of co-mortgagors, and who were seven in number, sought the redemption of an ancient mortgage, made sometime in 1868. The suit succeeded and it was ordered that on payment of the mortgage money, the then plaintiffs would be put in possession of the property and in case of their failure to pay, the suit would stand dismissed. It so happened that only four out of the seven plaintiffs deposited the entire mortgage-money. The result was that those four plaintiffs, who deposited the mortgage-money, came into possession of the entire property mortgaged in 1868. It is admitted before me, with respect to a portion of the property redeemed, the persons who had deposited the mortgage- money, were recorded as proprietors and in respect of the remaining portions they were recorded, in the revenue papers, as mortgagees.

(2.) The representatives of some of the original plaintiffs who did not pay in the mortgage-money under the terms of the decree, raised the present suit, for recovery of their share on proportionate payment, from persons who now hold under those plaintiffs of the earlier litigation who had paid up the mortgage- money.

(3.) The suit has succeeded in both the Courts and now in second appeal the two points already mentioned have been raised. On the point of limitation, it is clear that on the authority of this Court, the limitation starts from the date of the mortgage and 60 years rule supplies. The mortgage is usufructuary and the fact that some co-mortgagors have redeemed does not make any difference to the original mortgage. The 60 years rule is not cut down by the mere fact that some of the mortgagors have effected a redemption: vide Ashfaq Ahmad V/s. Wazir Ali [1891] 14 All. 1.