PT SHYAM LAL Vs. LAKSHMI NARAIN

JUDGEMENT

(1.) This is a second appeal by a plaintiff whose suit for enforcement of a simple mortgage against defendant 1 has been dismissed by both the lower Courts. Defendant 1, Lakshmi Narain, is a minor and is the son of one Har Lal who was the son of one Bhagwan Din. On 7 February 1918 the plaintiff advanced Rs. 600 to Bhagwan Din on a simple mortgage, re-payment to be made within two years and the rate of interest was 11 annas 9 pies per cent, per mensem with six-monthly rests. The area mortgaged was a share of 2 biswansis. In 1929 Har Lal made a gift of 5 kachwansis to defendants 2 and 3, Jiwa Lal and Chammi Lal. On 21st February 1930 Har Lal executed a simple mortgage deed of 91/2 biswansis to defendants 2 and 3 for Rs. 1000 and he left of this consideration Rs. 600 with defendants 2 and 3 to pay the plaintiff. This was paid to the plaintiff by these defendants on the same date, 21 February 1930. Har Lal died before the present suit was brought on 20 August 1934 and the present suit is brought to realize the balance due to the plaintiff on the mortgage of 1918 the amount claimed being Rs. 1160. One Sri Ram was first of all appointed guardian ad litem of the minor defendant 1 and he admitted the claim, but later he was displaced as guardian by the mother of the minor who contested the suit. One of the issues was "whether the suit was barred by limitation?" and the Courts below have hold that the suit was barred by limitation against defendant 1. The trial Court granted a decree for sale against defendants 2 and 3 so far as the property, the subject of the gift of 1929, was concerned. The plaintiff appealed to the lower Appellate Court and that Court dismissed his suit on the ground of limitation. The main question in second appeal is limitation. The suit of the plaintiff was brought on 20 August 1934 which was more than 12 years from the date on which payment should have been made under the mortgage deed of 1918, that is on 7 February 1920. The plaintiff relied for the saving of limitation on an admission contained in the mortgage deed of 21 February 1930 executed by Har Lal in favour of defendants 2 and 3. That admission was contained in the following words in regard to the property in suit of which 91/2 biswansis were mortgaged by this mortgage deed of 29 February 1930: And excepting the charge of the mortgage executed by myself in favour of Shyam Lal dated 7 February 1918 and registered on 8 February 1918 in Book No. 1, Vol. 124 at page 129, is quite free from all other transfers and liabilities. Now for the purpose, of paying the incumbrance of the said mortgage.

(2.) It may be noted that the very purpose of this deed of 1930 was to pay off the mortgage bond of 7 February 1918. On the same date an endorsement was made on the mortgage deed of 7 February 1918 to the following effect: To-day the 21 February 1930 a sum of Rs. 900 has been received towards this mortgage deed from 1 Ian Lal, son and heir of Bhagwan Din, deceased, through Jiwa Lal and Ohamrai Lal. A receipt for 51, has been given today to Jiwa Lal, and Chammi Lal also. Signed Har Lal by his own pen.

(3.) There is no signature of the plaintiff on this endorsement. On behalf of the plaintiff reliance is placed on the acknowledgment by Har Lal, the predecessor of defendant 1 in the mortgage deed of 21 February 1930. This is a clear acknowledgment of liability under the mortgage deed of the plaintiff. It is true that that mortgage deed further states: I have left a sum of Rs. 900 for paying the mortgage aforesaid and bond debts in favour of the mortgage (land. The mortgagees should pay I, ho money to Shyam Lal aforesaid and obtain receipt from him.