1. The appellant Daljit Singh was defendant 4 in the suit which was for the enforcement of a simple mortgage dated 27th October 1922 executed by defendants 1 to 3 in lieu of an advance of Rs. 922-8-0 in favour of the plaintiff firm. The mortgagors, defendants 1 to 3, did not contest the suit. The appellant contested it on various grounds. The Courts below have decreed it and have provided in the decree that it shall be executed against the mortgagors and the mortgaged property in the first instance and that if the whole of the amount due to the plaintiff firm is not realized by sale of the mortgaged property,
whatever amount remains due after the sale of the mortgaged property shall be recovered from the property of Daljit Singh, defendant, to the extent of Rs. 922-8-0.
2. As stated above, the mortgage deed in suit was executed on 27th October 1922. On the same day Tilok Singh, father of the appellant, executed a deed in favour of the mortgagee in these terms:
I, Tilok Singh...execute this surety deed in favour of you, Lala Harkishan Lal Sah and brothers...to the effect that since Har Singh...had mortgaged with you...together with house and all his rights and interest, if your money is not realized from the said mortgaged property...then you shall be entitled to realize your money, Rs. 922 8-0, from my person and property and I shall have no objection to it. I have therefore executed this deed of surety in order that it may serve as evidence.
3. No specific property belonging to Tilok Singh was anywhere mentioned in this deed and there is nothing to show that any charge was created on any property. This deed was registered. Tilok Singh is dead and his son, the appellant, has been impleaded by the plaintiff as a defendant on the allegation that he is liable to fulfil the obligation incurred by his father. The mortgage deed fixed a term of one year for payment. The suit was instituted on 30th October 1935. The Courts were closed from 27th to 29th October 1935 on account of Diwali, and so the suit was within 12 years from 27th October 1923 when the period of one year fixed in the mortgage deed for payment expired.
4. The first point raised on behalf of the appellant is that the suit against him was barred by time. It is argued that no charge having been created by Tilok Singh on any specific property, it was only a personal liability that was incurred by him. The learned Judge in the lower Appellate Court has accepted this contention of the appellant, and in our opinion his decision on this point is correct. But from that it does not follow that the contention of the appellant that time began to run so far as he was concerned from 27th October 1923 and that the suit should have been brought within six years from that date, is correct. The question as to when time began to run, so far as the surety was concerned, has to be decided on the terms of the contract of guarantee in each case. The undertaking given by Tilok Singh to the mortgagee was that if the latter's money was not realized from the property mortgaged by the mortgagors, then the mortgagee would be entitled to realize his money, Rs. 922-8-0, from the surety. It seems to us that the clear intention of the parties was that the mortgagee was first to proceed against the mortgaged property and was to take every step that could be taken against it to realize his money, and that it was only when he failed to realize the whole amount due to him from the mortgaged property that he was to proceed against the surety. That being so, the argument that the suit against the surety had to be brought within six years from 27th October 1923 cannot be accepted. We hold therefore that the suit was not barred by time as against the appellant.
5. Next, it has, somewhat inconsistently with the first argument, been urged that the suit against the appellant is premature. In our opinion, this argument is without force. Section 128, Contract Act provides that the liability of the surety is co-extensive with that of the principal debtor unless it is otherwise provided by the contract. Here there is no contract to the contrary. That being so, the plaintiff firm was justified in impleading the surety also in the suit which it brought against the principal debtors. As mentioned above, the decree passed by the Courts below provides that the property, mortgaged by the principal debtors shall be sold first, and that if the whole of the amount due to the decree-holder is not satisfied the decree shall be executed against the property of Daljit Singh to the extent of Rs. 922-8-0. Thus, the appellant's interests have been fully safeguarded.
6. The next point raised by the learned Counsel for the appellant is that under the deed executed by Tilok Singh he had undertaken to pay to the mortgagee the principal money alone and no interest. He urges that the present claim being for the recovery of a sum of Rs. 2173-13-9, which includes interest, the Courts below were not right in passing a decree in the terms in which they have done and that it should be made clear that the appellant is not liable to pay any interest whatsoever. The argument is that if the mortgaged property fetches more than Rs. 922-8-0 the appellant should not be called upon to pay anything at all, and that it is only when the property fetches less than Rs. 922-8-0 that he can be called upon to make good the deficiency to make up Rs. 922-8-0. In our opinion, this argument is not well founded. The words used in the deed executed by Tilok Singh are: 'If your money is not realized....' The phrase 'your money' means, 'whatever is due to you.' That includes interest. It seems to us that what the deed means is this; that if the mortgagee was not able to realize the whole amount due to him from the mortgaged property, then in that case Tilok Singh would be liable to make good the deficiency to the extent of Rs. 922-8-0 Accordingly, we hold that this argument put forward on behalf of the appellant is also without force.
7. The last point urged is that the appellant cannot under the law be made liable personally for the liability undertaken by his deceased father and that it should have been made clear in the decree that he was liable only to the extent of the joint family property in his hands. In our opinion, this contention is correct. Under the Mitakshara the son is liable to pay the debt incurred by the father as the result of being a surety for payment of money lent and for delivery of goods. This liability of the son however is not higher than the pious obligation that rests on him for the payment of his father's personal debts, and is limited to his interest in the joint family property. No authority to the contrary has been shown to us by learned Counsel for the plaintiff-respondents. In the result we dismiss the appeal with costs, subject to the direction that it shall be made clear in the decree that if it has to be executed only against such joint family property, if any, as he may be found possessed of, and not against his person or personal property.