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Gaya Prasad and ors. Vs. Babu Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1928All387; 110Ind.Cas.561
AppellantGaya Prasad and ors.
RespondentBabu Ram and anr.
Excerpt:
- - in support of this alleged payment the plaintiff produced two witnesses, sukh lal and samokhan, who did not by their demeanour impress the court below, and whom the court has considered to be utterly unreliable witnesses. 6. the learned advocate for the appellants has conceded that even if gaya prasad was not the mortgagor when he made the acknowledgments on the former occasions, those acknowledgments would be good if by the time when the present suit was instituted gaya prasad had become one of the mortgagors. we are clearly of opinion that the claim is not barred by limitation......october 1898 the mortgagor kashi prasad executed a lease of the mortgaged property in favour of gaya prasad, one of the appellants. under this lease gaya prasad was put in possession of the mortgaged property, and the mortgagor authorized the lessee to pay out of the net profits of rs. 1,000 the interest due under the mortgage-deed of 1897 in the first instance and the surplus towards the principal of that debt. gaya prasad was one of the sons of the mortgagee har prasad. it is not disputed that gaya prasad did enter into possession of the property, nor is it denied that for a number of years from 1898 to 1912 payments were made by gaya prasad to all the mortgagees and receipts were duly obtained.3. the plaintiff alleged that there was a payment of rs. 1,000 in 1913 and also a payment.....
Judgment:

Sulaiman, J.

1. This is a defendant's appeal arising out of a suit for sale on the basis of a mortgage-deed dated 8th March 1897 executed by one Kashi Prasad in favour of three persons Babu Ram, Har Prasad and Dwarka Prasad for a sum of Rs. 8,500. The suit was instituted by Babu Ram alone for his one-third share in the mortgage money. It is an admitted fact that by a subsequent purchase Har Prasad's sons who are the present appellants, acquired the interest of Dwarka Prasad in the mortgage-debt, and they have also acquired the whole of the equity of redemption. In order to bring the claim within limitation the plaintiff relied on certain acknowledgments and alleged payments of interest. The main defence to the suit was that the plaintiff's claim was barred by limitation and that in any case the whole amount had been paid off and nothing was outstanding. The learned Subordinate Judge has decreed the claim; hence the appeal.

2. It appears that on 12th October 1898 the mortgagor Kashi Prasad executed a lease of the mortgaged property in favour of Gaya Prasad, one of the appellants. Under this lease Gaya Prasad was put in possession of the mortgaged property, and the mortgagor authorized the lessee to pay out of the net profits of Rs. 1,000 the interest due under the mortgage-deed of 1897 in the first instance and the surplus towards the principal of that debt. Gaya Prasad was one of the sons of the mortgagee Har Prasad. It is not disputed that Gaya Prasad did enter into possession of the property, nor is it denied that for a number of years from 1898 to 1912 payments were made by Gaya Prasad to all the mortgagees and receipts were duly obtained.

3. The plaintiff alleged that there was a payment of Rs. 1,000 in 1913 and also a payment of Rs. 180 on 5th July 1914. The original receipt in support of the payment of Rs. 1,000 bears the date 24th June 1912 and not 1913. It is therefore now conceded on behalf of the plaintiff that this payment does not help him. As regards the payment of Rs. 180 on 5th July 1914 there is no documentary evidence to prove it except a paper said to be a draft copy of the original receipt which has been rejected by the Court below. In support of this alleged payment the plaintiff produced two witnesses, Sukh Lal and Samokhan, who did not by their demeanour impress the Court below, and whom the Court has considered to be utterly unreliable witnesses. There was considerable delay in summoning the alleged draft copy and there is also the fact that the witness Samokhan had never been summoned before although the case came up for hearing on four former occasions. Having regard to all these circumstances we find it difficult to take a contrary view. As regards this alleged payment it must therefore be held that there was no payment to the plaintiff in 1914.

4. It is, however, clear that Gaya Prasad, the lessee, was a member of the joint Hindu family with his father Har Prasad. The plaintiff no doubt alleged in his plaint that Gaya Prasad was separate, but the presumption of jointness was against the plaintiff. When Gaya Prasad went into the witness-box he deposed that he had been joint. There is no evidence to rebut the presumption or this evidence. It must therefore be assumed that the family was joint. It follows accordingly that Gaya Prasad was in receipt of the rents and profits of the mortgaged property which had been directed by the mortgagor to be paid to the mortgagees, one of whom was Gaya Prasad's own father who was joint with him. Under Section 20 (2), Lim. Act, where the mortgaged land is in possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment for the purposes of Sub-section (1). If the lease is deemed to be in favour of the joint family there can be no doubt that the receipt of the rents and profits would be tantamount to a payment of interest and principal as provided in the lease.

5. It also appears that so far as Gaya Prasad is concerned he did acknowledge the liability under this mortgage-deed. On 17th November 1916 he filed a written statement in a revenue case for ejectment against himself to the effect that the mortgage money in lieu of which the lease had been executed had not till then been paid, and the defendants could not be ejected till the payment of the entire aforesaid amount. This was undoubtedly an acknowledgement that in 1916 the mortgage-debt had not been wholly discharged. Subsequently, on 6th February 1917, he was examined as a witness and again in his deposition he stated that the amount of Har Prasad and Babu Ram had not till then been realized, and the lease would remain in force till the document was paid up. There can be no doubt in our minds that these acknowledgments referred to the mortgage-debt in question.

6. The learned advocate for the appellants has conceded that even if Gaya Prasad was not the mortgagor when he made the acknowledgments on the former occasions, those acknowledgments would be good if by the time when the present suit was instituted Gaya Prasad had become one of the mortgagors. There is abundant authority for this view, vide Jugal Kishore v. Fakhruddin [1907] 29 All. 90, and Arbindakeb Rai v. Jageshar Rai [1919] 17 A.L.J. 763.

7. His contention, however, is that the acknowledgment by one co-mortgagor is of no avail to the plaintiff and is wholly inoperative. It is impossible to accept this contention. Section 19 certainly gives a fresh start for purposes of limitation against the party who has signed the written acknowledgment. The learned advocate relies strongly on Sub-section (2) of Section 21 which says that nothing in Section 19 renders one of several joint contractors chargeable by reason only of a written acknowledgment signed by him or by the agent of any other of them That sub-section merely lays down that one of the joint contractors cannot be chargeable on account of an acknowledgment made by another joint contractor. It does not say that contractor himself who made the acknowledgment is not bound by it. We are of opinion that there can be no doubt that the acknowledgments signed by Gaya Prasad did have the effect of saving limitation as against Gaya Prasad himself though not as against his other co-debtors. This view finds support from the observation of a Bench of this Court in the case of Collector of Jaunpur v. Jumna Prasad A.I.R. 1922 All. 37, where it was remarked that an acknowledgment by one of the heirs of a Mahomedan debtor could under Section 19 be used against him only and not the others. We may also refer to the case of Abraham Servai v. Raphial Mutherian [1916] 39 Mad. 288. It is thus clear that the present suit as against Gaya Prasad would be within time, even though it be not within time as against the other debtors on account of Gaya Prasad's acknowledgments.

8. The next question is whether there has been any payment of interest within the meaning of Section 20, so as to save limitation. The argument on behalf of the appellants is that the payment by the lessee of interest, assuming that it was made, must be deemed to have been made to one of the mortgagees and cannot therefore be taken advantage of by the present plaintiff. No authority has been cited before us showing that the payment by the mortgagor to one of the mortgagees does not save limitation in favour of all the mortgagees. Section 20 of the Act merely lays down that the payment of interest as such by the person liable to pay would give a fresh period of limitation. It does not say that payment should be to all the persons entitled to receive the amount. Section 21 (2), as far as it affects mortgagees, refers to cases where there has been a written acknowledgment signed by or a payment made by one of such mortgagees. That is not the case before us. Here we have not to consider a payment made by a mortgagee but a payment made to one out of several mortgagees it is also to be noted that when Kashi Prasad authorized Gaya Prasad under the lease to make payments of amounts towards interest he undoubtedly intended that these payments should be made to all the mortgagees Various receipts that are on the record show that for a number of years the payments were made to all the mortgagees. If therefore after 1912 there were any payments made to one of the mortgagees it must be deemed to have been intended to be paid to all the mortgagees, though as a matter of fact the amount went into the hands of only one of them. It would therefore seem prima facie that the payment made by the mortgagor having been made on account of interest could be used against him and his representatives so as to save limitation, it being immaterial whether the particular mortgagee who received the amount in the first instance did or did not subsequently distribute it among all the mortgagees. In view, however, of our conclusion on the question of written acknowledgments it is not necessary to ideal with this point at any greater length. We are clearly of opinion that the claim is not barred by limitation.

9. It now remains to consider the question of accounting. Assuming that Gaya Prasad may be deemed to have been making regular payments as directed by the lease, those payments were made only to Har Prasad and could not be taken to have been payments made to the present plaintiff Babu Ram. The payment made to one of the joint mortgagees can be payment to him to the extent of his share only, and cannot be a valid payment as regards other mortgagees: Abdul Hakim v. Adyata Chandra Das [1918] 22 C.W.N. 1021. The plaintiff was therefore entitled to recover his one-third share of the mortgage-debt after making allowance for the payments admitted by him in the plaint, except the last one of Rs. 180. As a matter of fact the sum of Rs. 180 had been deducted from the amount claimed by the plaintiff. The decree of the Court below is therefore right and this appeal is dismissed with costs.


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