LOKANDHA NAIKO Vs. LOKHONO NAIKO

JUDGEMENT

(1.) The suit out of which this second appeal arises was filed to enforce a mortgage bond executed on 4 June 1894 by two brothers Durlobo Naiko and Ratno Naiko. The defendants are various descendants of these two mortgagors. Defendant 15 is a purchaser from defendants 13 and 14. These last three persons alone deny liability for the debt and the only question I have to consider is whether, so far as they are concerned, it is time barred. On 19th May 1913, there was a payment of interest made by two members of the family, Sombari Naiko and Ramo Naiko, and it is argued that this payment would save limitation against those persons who were still bound by the mortgage. The contention of defendant 13, however, who is a brother of Ramo Naiko is that he was divided from the family at the time when this payment was made. The point has been taken that this plea was not the plea set up during the trial of the suit and it is true that it was not expressly alleged in the written statement, although para. 5 of that pleading states that even if any of the endorsements are true the signatories thereto have no power to make payment so as to bind defendants 13 and 14. This formed the foundation of issue 3, namely: whether the payments relied on by the plaintiffs are true, valid and binding on defendants 13 and 14.

(2.) Inasmuch as both the lower Courts have tried the question of separate status I do not think there is much substance in this objection.

(3.) It is then said that the learned Subordinate Judge in reversing the judgment of the District Munsif on this point has misappreciated the evidence. He seems to have relied almost exclusively upon what he terms the admission of the plaintiffs witness 1 that Ramo Naiko and defendant 13 were divided at the date of the payment, This so-called admission is to be found towards the close of the cross-examination where it is stated categorically that: Ramo Naiko, Sombari Naiko, and, defendant 13 had been divided by that time and from the context in which that sentence occurs it is quite reasonable I think to infer that the witness meant that division had taken place between Ramo Naiko and defendant 13. It is to be observed that there was no reexamination upon this point and I cannot accordingly say that the finding of the lower appellate Court proceeded upon lack or misconstruction of evidence.