Sadasiva Aiyar, J.
1. Defendants 3, 4, 13 and 14 are the appellants. The facts are somewhat complicated and in setting them out 1 shall for the sake of brevity describe the parties to old transactions who are the ancestors of some of the parties to the suit as if they were themselves parties to the suit. There was first a usufructuary mortgage of items 1 to 8 by defendants 1 and 2 to the plaintiff. Next there were five usufructuary mortgages under Ex. I to V executed in the years between 1880 and 1883 in favour of Srinadhu Appadu of items 9 to 16, the total sum due under these five usufructuary mortgages being Rs. 3,200. Next there was a simple mortgage (Ex. A) in January 1886 for Rs. 4,000 made up of three items :--(1) Rs. 3,010 due under a simple debt bond of 1879 (Ex. A-3,), (2) Rs. 590 due under a promissory note and (3) Rs. 400 paid in cash. It is on this bond Ex. A that the present suit for sale of the plaint properties items 1 to 16 is brought.
2. The equity of redemption in half, of items 1 to 8 is now vested in the 13th defendant and the equity of redemption in the other half in the 14th defendant while the equity of redemption in items 9 to 16 is vested in defendants 3 and 4 as a result of transactions which it is unnecessary to set out in detail.
3. The important and preliminary question in the case is whether the plaintiff's suit on this bond of 1886 is barred by limitation. One more fact ,might be stated, namely that in 1915 defendants 3 and 4 in whom the equity of redemption in items 9 to 16 was vested paid Rs. 3,200 to the usufructuary mortgagee Srinadhu Appadu and thus redeemed the usufructuary mortgages of 1880 to 1883 (Exs. I to V). The plaintiffs' contention is that the date when the money became due to him under the simple mortgage deed Ex, A sued on is the date of the redemption of items 9 to 16 from the usufructuary mortgagee (i.e. 1915) and hence this suit is not barred. It is admitted that if his cause of action arose in 1886 itself the suit would be barred as there are no acknowledgments of indebtedness after the year 1890, and as admittedly article 132 of the Limitation Act applies. Hence the question for decision is what is the date on which the amount borrowed under Ex. A became due according to the proper construction of its terms. Those terms are to the following effect. 'We shall discharge the principal and interest of these documents on the security of the 13 garces of land' (that is items 1 to 8) 'usufructuarily mortgaged under the document of 1879) and also on the 15 garces of land usufructuarily mortgaged to Srinadhu Appadu' under Ex. I to V i. e. the lands mortgaged as the second set, namely items 9 to 16, to be security after discharging the debt due to Srinadhu Appadu) and we shall pay up the hypothecation debt on the securities above set out and get back this hypothecation bond.' That according to me is the effect of the language used in Ex, A the construction of which it may be conceded, owing to its involved grammatical construction, is not free from obscurity. The lower court accepted the plaintiff's contention and held that the parties intended that the amount due under Ex. A was to become due only when at some future uncertain date, the mortgagors or their representatives in interest chose to redeem Srinadhu Appadu and that as Srinadhu Appadu was redeemed only in 1915, it was then that the debt due under Ex. A became due. After hearing full arguments I am unable to agree with the lower court on the construction put by it upon Ex. A, The provision about Srinadhu Appadu's usufructuary mortgages which occurs in the portion which describes the second set of properties items 9 to 16 given as additional secrity was, I think, intended to embody merely the undertaking given by the mortgagors to discharge those usufructuary mortgage deeds Exs. I to V so as to make the properties better security and not to postpone the date from which the cause of action for the plaintiffs' enforcement of his right to recover money under Ex. A was to arise. The redemption of Srinadhu's usufructuary mortgages would not be barred for at least sixty years from their respective dates and I am unable to believe that the hypothecatee under Ex. A who had not only items 9 to 16 hypothecated to him subject to Srinadhu's mortgage but other properties, items 1 to 8 would have agreed to wait for 60 years and for the contingency of those properties 9 to 16 being redeemed to get back the Rs. 4000 lent by him under Ex, A with the enormous accumulation of the interest provided for under it. In my opinion, the reasonable construction of Ex. A is that items 1 to 8 subject to the plaintiffs' prior usufructuary mortgage and items 9 to 16 subject to Srinadhu's usufructuary mortgages were made security for the Rs. 4000 borrowed under Ex. A without a stipulation for any particular period for repayment of the amount borrowed. On this construction therefore the suit is barred and must be dismissed reversing the decree of the lower Court.
4. Though if is unnecessary to consider the other questions' raised in the lower court and also argued here, I shall shortly give my opinions on the more important of those other questions also as we were informed that the case might be taken before their Lordships of the Privy Council. The Subordinate Judge considered that of the Rs. 4000 consideration under Ex. A, only the payment of Rs. 3010 was proved. The appellants say that only Rs. 1800 passed while the plaintiffs in their memorandum of objections contend that the whole of Rs. 4000 should be found to have passed. The appellants contention that Rs. 1800 alone passed is based upon a clerical omission in Ex. A which, when referring to Rs. 3010 refers to it as the principal amount of Ex. A-3 instead of as the principle amount and interest due till then under Ex. A-3, The appellants' contention on this point is therefore rejected.
5. The respondents' contention in their memorandum of objections would in my opinion have to be allowed as the passing of consideration for a document which is more than 30 years old and which was never questioned till this suit was brought should be taken as proved even if the direct evidence is not as strong as might be naturally expected in respect of recent transactions. The plaintiffs' 1st witness, the 7th defendant who is the co-mortgagee with the plaintiffs proves that the second and third items of consideration, Rs. 590 and Rs. 400 mentioned in Ex. A, also passed and I see no reason to disbelieve his statement. I therefore differ from the lower court's conclusion on that point.
6. Then there was a contention raised by the appellants that as the 14th defendant was impleaded as the receiver of the estate of a person, Basava Reddi, who owned one half of the equity of redemption in items 1 to 8 and was sued without the plaintiffs' obtaining the permission of the District Court which had appointed him receiver in a litigation involving the rights of the representatives of Basava Reddi, the suit so far as that half share was concerned should have been dismissed. In Ammukutty v. Manavikramun I.L.R.(1920) Mad. 793 this Bench held that while such sanction was necessary for the maintainability of the suit, the failure to obtain the sanction can be effectively cured by the plaintiffs obtaining the sanction during the course of the litigation and that the necessity to obtain the sanction was imposed by the common law merely to enforce due respect towards Courts of justice and that the omission does not affect the jurisdiction of the Courts. It appears from High on Receivers paragraph 261 that a receiver might waive his right to put forward such a plea and that he might by his conduct be estopped from raising such a plea in certain circumstances. The receiver has now been substituted by the heirs of Basava Reddi himself and I think that the objection to want of sanction is no longer available as against the plaintiff, the receiver having ceased to be on the record.
7. Then the lower court thought that the plaintiff could not sue for sale of items 1 to 8 subject to the prior usufructuary mortgage in plaintiffs' own favour. It gives no reason for its view. If plaintiffs are entitled to get a decree for sale of items 1 to 8, they are entitled to have them sold subject to their prior usufructuary mortgages--see Subramania v. Balasubramania 29 M.L.J. 195 (F.B.).
8. There were one or two other difficult questions argued; but I shall not deal with them.
9. The parties will bear their respective costs in the lower court and that the appellants will get their costs from the plaintiffs in this appeal. The Memorandum of objections is dismissed. There will be no costs therein.
10. I agree with my learned brother on all points but I desire to express my opinion only on the point of limitation as we are reversing the lower court's decree on that point. As the date of payment is not expressly mentioned in Ex. A it must be assumed that the amount secured by the mortgage was payable on the date of the execution of the document, that is, on 19th January 1886. The wording of this document implies an expectation on the part of the executants that the mortgagors or the mortgagees would redeem the prior mortgagee Srinadhu Appadu at an early date. At the same time I do not think that it was intended by the parties that the mortgagors should have the power to postpone their liability to pay their debt to the mortgagee plaintiffs by means of their own action in delaying to pay off Srinadhu Appadu's debt. If there had been a real intention to extend the period of limitation beyond the statutory period of 12 years I should expect to find an expression in apt words of the terms of the agreement relating to the date of repayment) and it would not have been left to be inferred from the words used to describe the items composing the second part of the security for the loan.
11. The Appeal must be allowed and the suit dismissed with costs in this Court.