BARADA KANTA ROY Vs. JATINDRA NATH MUKHERJEE

JUDGEMENT

(1.) THIS is a mortgage suit and the suit was decreed in the first Court but dismissed in the second Court. The original mortgagor was one Enajuddi, He died and the present suit was brought against his two widows and also against certain purchasers-defendants Nos. 5 and 6. The question was whether the suit was in time and that depended upon whether or not the Court, found that in 1319 there had been a payment made on the part of the widows. There was a further question, namely, whether that payment stopped the Statute of Limitation from running as against even the minor sons. The learned Subordinate Judge came first of alia to the conclusion that it was not possible for him to say affirmatively that the payment of Rs. 180 was made in full satisfaction. That is the first thing. There is great deal of evidence which might point that way. He said, for instance, that the plaintiff's suit was an afterthought and was not bona fide, but he did say that it was impossible to definitely ascertain whether it was made in full satisfaction. The burden of proving that was upon the defendants. That is a finding, as far as it goes, in the plaintiff's favour. The burden of proving that a payment was made which would enlarge the time under the Statute was on the plaintiff and the learned Subordinate Judge at the end of a long argument about this payment and its effect upon the minor puts in this expression: "I, therefore, find that the limitation against the children of Enajuddi was never saved by the payment of Rs. 180 even if it be held that it was paid on account of interest in 1319 Chaitra of which I have grave doubts." If the learned Subordinate Judge had grave doubts whether that was paid in 1319 Chaitra as alleged, his obvious business was to disregard the payment altogether for any purpose of the Statute of Limitation. He ought to have said It is not proved to me that at this time the payment was made as alleged and I will disregard it till I know the exact time at which it was paid." It is imposasible to say whether the Statute has been interrupted or not. The learned Subordinate Judge in the end dealt with the matter in this way; Finding that the payment did not affect the minors he then proceeded to the widow. He said that the widow died pending suit and her heirs were not substituted, that is to say, persons were substituted who were not her heirs, and consequently he dismissed the suit against the widow. In that he was wrong. If the widow had entirely parted with her equity of redemption before the suit was brought, there was no possible sense in joining any heirs of the widow because the purchasers were on the record. What is really wanted is a finding, definitely if possible, whether it is proved by the defendants or any of them that Rs. 180 was paid in full satisfaction and secondly, whether it is proved by the plaintiff to the satisfaction of the Court that that sum was paid in Chaitra 1319 or on some other date that would operate to save limitation. It appears to me that this case must go back to the lower Appellate Court for proper findings on those two points. There are the only two points which it would be in the least necessary to labour and the learned Judge must put the onus on the proper parties. The appeal is allowed and the costs of this appeal will abide the event. Charu Chunder Ghose, J.

(2.) I agree.