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Mata Tahal Vs. Bhagwan Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All104; 63Ind.Cas.477
AppellantMata Tahal
RespondentBhagwan Singh and ors.
Excerpt:
mortgage - redemption period fixed--interest, payment of, annually with option to mortgagee to sue on occurrence of default--default--limitation, commencement of. - - the lower appellate court has held that the plaintiff has failed to prove that the debt was taken for legitimate family purposes and it has, therefore, dismissed the suit for sale. the plaintiff mortgagee was not bound to sue for the whole of the mortgage money as soon as there was failure in payment of instalment of any year......brought his suit for sale after the expiry of the ten years. he claimed a relief both against the persons of the mortgagors and the mortgaged property. to this suit the plaintiff-appellant impleaded the other members of the family of the mortgagors. the lower appellate court has held that the plaintiff has failed to prove that the debt was taken for legitimate family purposes and it has, therefore, dismissed the suit for sale. as to the personal relief the learned judge has arrived at the conclusion that 'the executants are no doubt personally liable for the debts but the personal relief is time-barred.' in this we think the learned judge of the court below was in error. the plaintiff mortgagee was not bound to sue for the whole of the mortgage money as soon as there was failure in.....
Judgment:

1. It appears that on the 17th of July 1905 Bhagwan and Sumer, members of a joint Hindu family, executed a mortgage-deed in favour of the plaintiff. The period fixed in the deed for redemption was ten years. Interest was to be payable annually and in the case of default in payment of interest for any year the mortgagee had the option of suing for the whole of the mortgage money. Although there was default in the payment of interest in the very first year after the mortgage, the plaintiff mortgagee brought his suit for sale after the expiry of the ten years. He claimed a relief both against the persons of the mortgagors and the mortgaged property. To this suit the plaintiff-appellant impleaded the other members of the family of the mortgagors. The lower Appellate Court has held that the plaintiff has failed to prove that the debt was taken for legitimate family purposes and it has, therefore, dismissed the suit for sale. As to the personal relief the learned Judge has arrived at the conclusion that 'the executants are no doubt personally liable for the debts but the personal relief is time-barred.' In this we think the learned Judge of the Court below was in error. The plaintiff mortgagee was not bound to sue for the whole of the mortgage money as soon as there was failure in payment of instalment of any year. It was open to him to do so or not. In this he did not choose to exercise the option and, in our opinion, he could wait for ten years, the period fixed in the mortgage-deed, before bringing his suit. This period expired on the 17th of July 1916. The present suit was brought within three years of that date. We are, therefore, of opinion that the Court below erred in saying that the claim against the persons of the mortgagors was barred by time. We, therefore, allow the appeal so far that we modify the decree of the Court below by decreeing the claim of the plaintiff-appellant against the persons of the mortgagors, Bhagwan Singh and Sumer Singh, with costs in all Courts, including in this Court-fees on the higher scale. We affirm the decree of the Court below so far that we dismiss the plaintiff's claim for sale and also against the persons of the other defendants who are to get their costs from the plaintiff-appellant in the Courts below. As they have not appeared in this Court, we do not award them costs here.


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