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indu Bhushan Mitra Vs. Sudhakar Choudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 568 of 1949
Judge
Reported inAIR1957Cal106
ActsTransfer of Property Act, 1882 - Section 52; ;Evidence Act, 1872 - Section 115; ;Debt Law; ;Bengal Money Lenders Act, 1940 - Section 36 and 36(1); ;Limitation Act, 1908 - Schedule - Article 120
Appellantindu Bhushan Mitra
RespondentSudhakar Choudhury and ors.
Appellant AdvocateApurbadhon Mukherjee and ;Sanchindra Das Gupta, Advs.
Respondent AdvocateBhabanath Dutta, Adv. for Respondent No. 2, ;Haridas Chatterjete, Adv. for Deputy Registrar
DispositionAppeal dismissed
Cases ReferredSarvamongala Dasi v. Paritosh Kumar Das
Excerpt:
- guha ray, j. 1. this second appeal by the plaintiff arises from a suit instituted by him for confirmation of his possession in the disputed homestead measuring 6 kattas 12 chattaks with a pucca structure thereon which admittedly formed the ancestral dwelling house of the family or in the alternative for recovery of joint possession on declaration of his 1/6th share in the same and in case it transpired that the defendants 2 and 3 had purchased the property, for a declaration that they were mere trustees for him regarding the said share and for re-opening the decree passed in title suit it no. 179 of 1938 and for passing a new decree granting the plaintiff easy instalments for payment of the decretal amount under the new decree to be passed. 2. the disputed homestead was the ancestral.....
Judgment:

Guha Ray, J.

1. This second appeal by the plaintiff arises from a suit instituted by him for confirmation of his possession in the disputed homestead measuring 6 kattas 12 chattaks with a pucca structure thereon which admittedly formed the ancestral dwelling house of the family or in the alternative for recovery of joint possession on declaration of his 1/6th share in the same and in case it transpired that the defendants 2 and 3 had purchased the property, for a declaration that they were mere trustees for him regarding the said share and for re-opening the decree passed in Title Suit it No. 179 of 1938 and for passing a new decree granting the plaintiff easy instalments for payment of the decretal amount Under the new decree to be passed.

2. The disputed homestead was the ancestral homestead of the family. Bholanath Mitra, the father of the plaintiff, had 6 sons, Bireswar, defendant No. 4, Pashupati, defendant No. 5, Sudhir, defendant No. 3, Bankim, defendant No. 2, Indu Bhusan, plaintiff, and Surya, defendant No. 6. Defendant No. 1 Sudhakar is the brother or the wife of Bankim, defendant No. 2. Bholanath executed as far back as the 1st of December 1930, a mortgage, Ex. 3 in favour of Pravash Chandra Ghosh to secure the payment of a loan of Rs. 400/- only. Pravash assigned this mortgage to Sudhakar, defendant No. 1 on 24-11-1937. Sudhakar as the assignee of the mortgage filed against Bholanah a mortgage suit and this suit was numbered as Mortgage Suit No. 179 of 1938. Interest was claimed at 12 per cent. per annum and the whole claim was laid at Rs. 722/-. Although Bholanath filed a written statement he did not ultimately contest the suit and on 5-5-1939 it was decreed ex parte in a preliminary form, This decree was made final on 15-6-1939 and the execution case, viz., 343 of 1939 followed and the 'homestead in question was put up to sale in execution of the mortgage decree and purchased by the decree-holder Sudhakar on 22-11-1939. This mortgage sale was confirmed on 19-12-1941. On 22-12-1941, that is, only 3 days after the confirmation of the mortgage sale Bholanath died. On 24-7-1942 the sale certificate was granted to Sudhakar and on 6-8-3942 Sudhakar applied for substituting the 6 sons of Bholanath in the execution case and giving delivery as against all of them. This application is Ex. 16A. On 25-6-1S43, Sudhakar, the decree-holder auction-purchaser and defendant No. 1 took delivery of possession of the property and the report of the peon giving delivery of possession Ex. 8. On 24-2-1.544 Sudhakar executed, a kobala Ex. 4a in favour of defendants 2 and 3 in respect of the disputed property and there is a recital in this deed that he was transferring the property according to the previous compromise. After Bholanath's death all his sons were added in the execution proceedings so that before the delivery of possession was taken all the sons of Bholanath including the present plaintiff were on the record as representatives of the judgment-debtor.

3. Before however, the mortgage suit was instituted in 1938 Bholanath executed a deed o settlement Ex. 5 on 30-11-1937. By this deed of settlement, he gave the disputed house to all his eons except defendant No. 2 Bankim. Scarcely three months had elapsed from the execution of this deed of settlement when Bholanath himself Instituted a suit against the sons in whose favour he had executed the deed of settlement for setting aside this deed of settlement. This suit was instituted on 5-12-1937 and is Suit No. 256 of 1937. On 16-1-1939 there was an amicable settlement; between Bholanath on the one hand and those of his sons who were defendants in Suit No. 256 of 1937, that is, all the sons except defendant No. 2 Bankim. This amicable settlement is Ex. 12 and Clause It was filed on 16-1-1939. For the purpose of this litigation only two of its terms are relevant. The first is that if the plaintiff deposits in Court within 7 days of the solenama, that is, by 23-1-1939 a sum of Rs. 600/- then the deed of settlement executed by the plaintiff Bholanath on 30-S-1937 will stand cancelled and the title acquired by defendants Nos. 1, 2, 3, 4 that is, Bireswar, Sudhir, indubhusan and Surya would be destroyed. In default of payment, the deed of settlement in question would stand and the suit would be dismissed with costs. The second is that if Indubhusan, defendant No, 3, takes away his goods from the disputed house within 3 months from the date of the solenama he will be entitled to withdraw Rs. 600/- deposited by his father. The father deposited the money on 23-1-1939. and the suit was decreed in terms of the solenama on 23-1-1939, the decree itself being Ex. 1GP. Before however, this decree was passed a second deed of settlement was executed by Bholanath on 22-1-1939. This is Ex. D. In this deed of settlement the disputed house was given in equal shares to defendants 2 and 3 Bankim and Sudhir. There was another term in this second deed of settlement, namely, that Bholanath would be entitled to live till his death in a new room on the Northern side of the building on the ground floor and after his death that room will go to defendants 2 and 3 in whose favour the deed of settlement was made and if there was a partition as between them this room would go to that one of those two sons to whom this adjoining portion of the house might be allotted on partition. In 1941, the plaintiff filed Suit No. 49 of 1941 for setting aside the solenama Ex. 12 but that suit failed.

4. These facts are not in dispute, The plaintiff's case is that Bholanath's mortgage was a fraudulent document, that it was really made in favour of Bankim and secondly that Sudhakar, the assignee of Pravash and brother-in-law of Bankim was merely a beriamdar of Bankim and he obtained the assignment as Bankim's benamdar and it was really Bankim who instituted the mortgage suit in his name.

5. That is the first part of his case and relates to the mortgage, its assignment, the decree in the mortgage suit and the sale of the disputed property in execution of that decree.

6. The 2nd part of the plaintiff's case relates to the 2nd deed of settlement which the plaintiff challenges as void and inoperative and also as never acted upon so that the defendants NOB. 2 and 3, according to the plaintiff, never acquired any rights to the disputed homestead under it.

7. The 3rd part of the plaintiff's case relates to the sale deed executed by Sudhakar in favour of defendants 2 and 3 and the deed, of partition as between defendants 2 and 3 thereafter. It is the plaintiff's case that the rights which defendants 2 and 3 acquired by this sale deed they acquired for the benefit of all the sons of Bholanath In-eluding the plaintiff and that if it were found that defendants 2 and 3 paid for that kobala the plaintiff would be prepared to deposit his share of the consideration if the Court ordered him so to do.

8. The suit was contested by defendant No. 2 alone. Defendants 4 to 6 filed separate written statements supporting on the whole toe plaintiff's case. Defendant No. 1 Sudhakar and defendant No. 3 Sudhir did, not appear at all.

9. The defence of Bankim, defendant No. 2 and respondent No. 2, is that Bholanath's mortgage to Pravash and the assignment of the mortgage by Pravash to Sudhakar were all genuine and defendant No. 2 had nothing to do with either, that the deed or settlement Ex. D dated 22-1-3939 is a bona fide document which was duly acted, upon and that himself raid defendant No. 3 Sudhir, the two beneficiaries under it, had the disputed homestead conveyed to them.' by defendant No. 1 Sudhakar by Ex. 4a: dated 24-2-1944 for good consideration so as to acquire a perfect title thereto for themselves without' being trustees for any of their ether brothers. His further defence is that the plaintiff having no title to the disputed property has no locus standi to have the decree reopened and that that prayer for reopening the decree is barred by limitation.

10. On the first part of the plaintiff's case, there is no finding recorded by either of the two Courts below presumably because the plaintiff led no evidence whatever beyond his own uncorroborated statement in support of his allegation that ' Bholanath's mortgage was fraudulent and that Sudhakar was merely a benamdar of Bankim. As to the 2nd and 3rd parts of the plaintiff's case, the trial Court found, in the first place that the plaintiff signally failed to establish his plea that the 2nd deed of settlement was void and inoperative on the ground of fraud and coercion, in the 2nd that it was a bona fide document and was acted upon, in the 3rd that it was not hit by the doctrine of lis pendens and the defendants 2 and 3 acquired good title to the disputed property under it for themselves and not on behalf of their brothers also and in the 4th the plaintiff had no locus standi to have the mortgage decree reopened as Bholanath's interest in the property devolved on defendants 2 and 3 to the exclusion of the rest of his sons, including the plaintiff though the plaintiff's suit as far as it related to the reopening of the decree u/s. 36 of the West. Bengal Money Lenders Act was not barred by limitation. The Appellate Court confirmed the findings of the trial Court that the 2nd deed of settlement was bona fide and acted upon and that it was not hit by the doctrine of lis pendens and dismissed the appeal on the ground that the plaintiff appellant had no locus standi to have the decree reopened.

11. Although neither of the Courts below dealt with the first part of the plaintiff's case, Mr. Mukherjee on behalf of the Appellant did not make any grievance of that and he raised three points only before me, viz., first the Courts below were in error in arriving at the finding that the 2nd deed of settlement was acted upon; secondly, that Sudhakar defendant No. 1 having impleaded all the sons of Bholanath in the proceedings in execution of the mortgage decree in complete disregard of the provisions of the 2nd deed of settlement it was not open to defendant No. 2 who now claims title to the disputed property on the strength of his purchase from Sudhakar to hold up the 2nd deed of settlement as a shield against the plaintiff's claim for having the decree re-opened, on the ground that a party cannot be allowed to approbate and reprobate and blow hot and cold and thirdly, that after the mortgage sale the equity of redemption disappeared and the entire title to the property vested in the mortgagee auction-purchaser and thereafter any of the sons of Bholanath would stand in his shoes as far as the mortgage, debt was concerned so as to be entitled to have the mortgage decree re-opened.

12. Mr. Das Gupta who also appeared for the appellant with Mr. Mukherjee and who also argued for the appellant by way of supplementing the arguments of Mr. Mukherjee re-agitated the question of the 2nd deed of settlement being hit by the doctrine of lis pendens and further argued that as the 2nd deed of settlement was execated before the 1st deed of settlement was set aside it was invalid and inoperative in law. Mr. Das Gupta also urged, in support oX the plaintiff's plea that the suit in so far as it related to the re-opening-of the mortgage decree was not barred by limitation. (Section 11 of the Indian Soldiers (Litigation). Act.)

13. Before however, the points raised on behalf of the appellants are dealt with, it is necessary to see if there is any substance in the first part of the plaintiff's case, for if there is, the whole case may have to be sent back for retrial for the simple reason that a favourable, finding on the first point is bound to lend a completely different complexion to the rest of the plaintiff's case. If on the other hand, it is plain that on the materials on the record that part of the plaintiff's case is clearly without any substance., the whole matter may be disposed of here.

14. In the plaint there is not even a suggestion that Bholanath's mortgage to Pravash was in reality a mortgage to Bankim and to that extent fraudulent, yet in his evidence the plaintiff does not hesitate to characterise that document as fraudulent without saying why he thought so. In his cross-examination for the first time he says he was present at the time of the execution of the mortgage document and Bankim paid the consideration for the mortgage bond. Later on, in his cross-examination he comes out with another story, viz., that there was no consideration for the mortgage-bond and Bankim paid to the plaintiff Rs. 800/-on a hand-note executed by him on the same day when the mortgage also was executed and that was really the consideration for the mortgage according to the plaintiff. Bankim himself in his evidence says that Indu executed a hand note in his favour on the date of the mortgage but he did not advance any money on it because Indu never made it over to him after taking it out from tile registration office. He further says that he never paid the consideration for the mortgage in favour of Pravash. That this was so is clear from what the plaintiff himself says later in his cross-examination:

'It is not a fact that my father borrowed Rs. 400/- on the mortgage to pay me the same. I paid up the dues under the hand-note. The hand-note was not returned to me. I did not see the hand-note after its registration. I required the same for payment of court-tees in a pauper suit. I would not be surprised to learn that the hand-note was never taken out from the Registration office and that it was eventually destroyed there. I 'learned from lawyers that it was destroyed in the Registration office. Bankim paid the sum of Rs. 400/- under the hand-note to my father through Pravash in consideration of the execution of the mortgage bond by him. I was paid only Rs. 400/-out of that on the date of execution of the mortgage bond. I was paid' Rs. 400/- about 15 days prior to that by Bankim on a receipt granted by me. The receipt was returned either to me or to my father after the registration of the Hand-note. The mortgage and the handnote were registered on the same day. Bankim attended the registration on that day. Bankim handed Rs. 400/- to Pravash in presence of the Registrar.'

15. The mortgage is Ex. 4 and it appears from the Registrar's endorsement there that Bholanath admitted receipt of the consideration and not that the consideration was paid in the Registrar's presence.

16. Now if all that the plaintiff stated abovewere facts, there is hardly any reason why theplaintiff should have refrained from mentioningthem even briefly in the plaint. It is also incredible that Bankim should advance him any moneytill the registered hand-note was delivered to himand if as the plaintiff himself is constrained toadmit that the required hand-note was destroyedin the Registration office there would be reallyno occasion for Bankim to lend the plaintiff anymoney on the hand note. The truth of the matterseems to be embodied in the recital in Ex. D thatBholanath advanced to Indu Rs. 400/- which hehad raised on the mortgage of the house, thatIndu refused to clear off this debt when the suitagainst him on this mortgage was pending, thatthe debt for which Bholanath was fully liable wasin the presence of Indu determined at Rs. 500/-and that Indu was to get Rs. 600/- in cash sothat he would get Rs. 1100/- in all in lieuof his share to the moveables and immoveablesof Bholanath and that Bankim paid to Bholanaththe sum of Rs. 600/- which Indu was to obtainin cash from Bholanath under this deed. In theface of- these circumstances, the plaintiff's uncorroborated statement that Bankim paid, the consideration of the mortgage must be discarded asuntrue and Bankim's denial of that fact accepted.

17. As to the plaintiff's allegation that the assignment by Pravash of the mortgage to Sudhakar was really an assignment to Bankim and that Bankim really auction-purchased the property in the name of Sudhakar there is complete absence of evidence, even the plaintiff who alleges this saying that he was not present at the execution of the deed of assignment. The mere fact that Sudhakar is the brother-in-law of Bankim cannot justify the inference that the assignment of the mortgage in his favour was in reality an assignment in favour of Bankim. As there is nothing to the contrary the apparent must be presumed to be the real state of affairs.

18. Clearly then, on the material on the record the first part of the plaintiff's case must be held to be without any substance at all. That is probably the explanation though by no means a justification, of the omission on the part of the Court below to examine this part of the plaintiff's case and to come to a distinct finding one way or the other and that is also probably the reason why the learned Advocates for the appellant did not make any grievance of this omission on their part.

19. The 2nd deed of settlement Ex. D, which is the principal bone of contention between the parties in this litigation makes interesting reading and provides a complete explanation of the dispositions made therein. It is undoubtedly a disposition in praesenti and the questions whether these dispositions were given effect to immediately after the execution and registration of the document assume a vital importance in deciding whether it represents a bona fide transaction and was acted upon. The Courts below have pointed out that Bireswar, the eldest son, was given a Bagat measuring one and half bighas and that it was, in evidence that he was in exclusive possession thereof. Indubhusan, the plaintiff, himself admits it in his cross-examination. The plaintiff further admits that Bireswar lives at Sibapore, Pashupati 'lives at Jogacha, Surya Kumar also lives at Jogacha and that Sudhir and Bankim alone are in possession of the disputed house. It is clear therefore that the dispositions made by this deed of settlement were given effect to. On behalf of the appellant it was contended that the father was admittedly in occupation of the disputed house upto his death as admitted by D, W. 3 Manindra. But this is clearly in pursuance of one of the provisions of the deed itself, viz., that Bholanath would only occupy the new room on the northern side on the ground floor upto his death and that on his death it will on partition between Bankim and Sudhir be allotted to that one of these two sons to whom the adjoining portion may be allotted. Bankim also says' so in his evidence. That the father occupied a room in the disputed house upto his death goes, therefore, to show that the deed was acted upon rather than the contrary. The finding therefore, of the Courts below on this point cannot but be confirmed.

20. The 2nd ground of attack on the 2nd! deed of settlement is the doctrine of lis Pendens. Admittedly when it was executed on 22-1-1939 the mortgage suit of Sudhakar which was decreed in preliminary form on 5-5-1939 was still pending. The doctrine of lis pendens as embodied, in Section 52, Transfer of Property Act, does not mean that a transfer pendente lite is either illegal or void. What it does mean is that it is only voidable to the extent that it affects the rights of the party who obtains the decree or an order in the pending litigation and that at the instance of that party only and not of any other party. It is good otherwise and cannot be questioned by a third party or even by the successful party in the pending litigation if his right in the property in question is left unaffected by the transfer (vide Shanmughasundaram Pillai v. Parvathi Ammal AIR 194S Mad ' 454) (A). Tested in the light of these principles, Bholanath's transfer of the disputed homestead to Bankim and Sudhir during the pendency of the mortgage suit by Sudhakar against Bholanath could be questioned by Sudhakar only and that to the extent that it jeopardised his interest in the property under the decree and not by Indu who was not initially a party at ail to the mortgage suit and who though impleaded by Sudhakar in, the execution proceedings as one of the heirs of his father did not acquire any interest in the property by being so impleaded at that stage so as to entitle him to question the transfer. There is thus no substance in this contention either.

21. The third ground of attack on the 2nd deed of settlement is that as it was executed on 22-1-1939 when the first deed of settlement was still subsisting, it was invalid in law arid no title could pass by it. It is certainly true that Ex. D was executed one day before the 1st deed of settlement actually stood cancelled by the decree passed on 23-1-1939 in terms of a solenama filed on 16-1-1939. As this point was not raised in the plaint the defence was not called upon to meet it nor does this point appear to have been taken in, either of the Courts below. But clearly on the recitals in the deed itself the dispositions were for consideration so that Section 43, Transfer of Property Act would be a complete answer to that contention. The entire attack therefore on the 2nd deed, of settlement must fail.

22. The two points raised by Mr. Mukherjee now remain to be considered. The first of these two is that Sudhakar having impleaded all the sons of Bholanath in the proceedings in execution of the mortgage decree in complete disregard of the terms of 2nd deed of settlement and Bankim and Sudhir, defendants 2 and 3 having stepped into the shoes of Sudhakar by their purchase of the property from him it was not open to them now to set up a title under the 2nd'deed of settlement because it is against all principles of justice to allow a party to blow hot and cold and approbate and reprobate in proceedings in relation to the same property. For this contention reliance was placed by Mr. Mukherjee on the cases of Bhaja Chowdhury v. Chuni Lal, 11 Cal W. N. 284 (B); Raghubar Dayal v. Jadunandan, 16 Cal W.N. 736 (C); Banku Chandra v. Marium Begum, 21 Cal W. N. 232 : (AIR 1917 Cal 546) (SB) (D). Dwijendra Narain Roy v. Joges Chandra : AIR1924Cal600 . 'The first three of these cases refer to inconsistent positions taken up by the same party in the course of different stages of the same proceedings and it was held that they could not be allowed to take such inconsistent positions. In the fourth case what happened is that the defendant attacked certain documents on two sets of grounds which were contradictory to each other, the identical documents having been attacked before in another proceeding en one of these two sets of grounds and that attack failed upto the Judicial Committee. Their Lordships in that case observed as follows:

'A party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the detriment of his opponent.... This wholesome doctrine applies not only to the successive stages of the same suit, but also to another suit than the one in which the position was taken up, provided that the second suit grows out of the judgment in the first,'

23. The facts of that case are evidently distinguishable from, the facts of the case in hand. There the inconsistent positions were taken up by the Fame party in two litigations, the second of which arose out of the judgment in the first. Here, however, Sudhakar impleaded all the sons of Bholanath ' in the execution proceedings in complete disregard of the provisions of the second deed of settlement under which only defendants 2 and 3 were Bholanath's successors and Sudhakar was clearly entitled in law under Section 52 of the Transfer of Property Act to disregard this deed of settlement. Defendants 2 and 3, however, before they acquired the interest of Sudhakar, as the decree-holder auction-purchaser, had acquired Bholanath's right of redemption and though that right was extinguished by the decree in the mortgage' suit of Sudhakar when Bholanath failed, to pay up the amount found due under the decree from 'him, the legal effect of the 2nd deed of settlement was to make defendant's 2 and 3 Bholanath's successors-in-interest, as far as the debt was concerned, so that when they purchased the property from Sudhakar they became at once the representatives of Sudhakar and of Bholanath, I am not 'aware of any principle of law, short of estoppel, by which a party who is at once the representative of two different persons is precluded from holding up as a shield against the claims of another his rights as representative of one of these two persons merely because the other person whom also he represents did something in disregard of his right as a representative of the first. What Sudhakar did in impleading all the sons of Bholanath would hardly raise an estoppel even as against himself because his omission to implead only defendants 2 and 3 according to the terms of the 2nd deed of settlement is not certainly an Omission to do something which :he is under a legal obligation to do. On the other hand, he was legally entitled to disregard the provisions of that deed of settlement in so far as it affected the mortgaged property. The representation which Sudhakar may be said to have made by impleading all the sons of Bholanath is only this that as sons of Bholanath they were his legal representatives and that as far as Sudhakar was concerned, nothing that Bholanath did during the pendency of the mortgage suit could alter this position, in this he was not making a representation of any fact which was not already known to the plaintiff so that it can hardly be said that the plaintiff was led to act in any particular way on such a representation. If this did not raise an estoppel even as against Sudhakar, far less would it do so as against Bankim who as a purchaser of the property from him was his representative-in-interest while at the same time he was a representative of his father Bholanath also. If there is no estoppel, there la nothing at all to debar Bankim from using the 2nd deed of settlement in defence of his right as against the claim of the plaintiff. This contention, therefore, of Mr. Mukherjee must be held to be untenable.

24. As to Mr. Mukherjee's second contention, viz., that on the extinction of Bholanath's right of redemption, on the sale of the property in execution of the decree in Sudhakar's's suit the entire title vests in the decree-holder auction-purchaser Sudhakar and any of the sons of Bholanath would be entitled to have the decree reopened, one can at once say that this is on the face of it untenable. It is only the debtor or his representatives-in-interest who are entitled to have the decree reopened under the Bengal Money Lenders Act. Though the decree in the mortgage suit on the expiry of the time fixed for the payment of mortgage dues extitiguished Bholanath's right to redeem. Bholanath still remained the debtor and whatever rights the debtor still might have had under the law vested in him and him alone. At the date of the 2nd deed of settlement, Bholanath's right of redemption was still subsisting and was validly transferred to defendants 2 and 3. When that equity of redemption was extinguished, defendants 2 and 3 still continued to be the representatives of the debtor in respect of the debt secured by the mortgage. That being so, it was only defendants 2 and 3 who as representatives of the debtor could legally ask for having the decree re-opened and not the plaintiff. Bholanath at the time of his death had no subsisting interest in the disputed property having already parted with it in favour of defendants 2 and 3. The rest of his sons, therefore, could not have acquired any interest therein by inheritance. The 2nd point of Mr. Mukherjee also must fail accordingly.

25. On behalf of respondent No. 2 it was contended that the suit was barred by limitation. The trial Court found this point in favour of the plaintiff and the learned lower Appellate Court did not at all consider it. It is a suit for declaration of plaintiff's one-sixth share in the disputed house and for recovery of joint possession with his other brothers and also for reopening the mortgage decree on the ground that the decree 'awarded a rate of interest higher than what is permissible under the Money Lenders Act. This suit was instituted on 19-4-1947. Bholanath died on 22-12-1941 and the plaintiff's title to the one-sixth share having accrued only on Bholanath's death, the suit in so far as it is a suit for recovery of joint possession on declaration of plaintiff's one-sixth share must be held to be within time. It would be within time even if the starting point of limitation be taken to be 22nd of January 1939, the date of the execution of the 2nd deed of settlement. But even in this case the claim for declaration of title and for recovery of joint possession is inextricably bound up, with the claim for reopening the decree and if the suit in so far as it is a suit for reopening the decree, is barred by limitation, must fail on the simple ground that the plaintiff has no title to the property in suit.

26. The learned Court below rightly holds that Article 120 of the Limitation Act will apply and this is also the view taken by Das J. in Sarvamongala Dasi v. Paritosh Kumar Das, : AIR1952Cal689 . The learned trial Court further thinks that by operation of the explanation appended to Sub-section (1) of Section 36, a mortgage decree passed prior to the coming into force of the Act is not deemed to be fully satisfied so long as there remains undisposed of an application by the decree-holder for . possession of the mortgaged property and as possession of the property in this case was delivered to Sudhakar on 25-6-1943 that would be the date when the cause of action of the plaintiff must be held to nave arisen. This is where the learned trial Court goes wrong. He uses the explanation to Section 36(1) of the Bengal Money Lenders Act for computing the starting point of limitation which, according to Article 120 of the Limitation Act, begins when the right to sue accrues. If he had read section 36 carefully, he would have at once found that under Section 36(1) it is open to a borrower to make an application for relief in a suit to which this Act applies or to bring a suit for relief under this section. The explanation added to Sub-section (1) is evidently meant to cover only applications for relief in suits to which the Act applies but it does not extend to suits brought by a borrower for relief under Section 38. Clearly the present suit is one for relief under Section 33. It does not come within the category to which only the explanation is limited in its application. The mortgage decree was made final on 15-6-1939. The Bengal Money Lenders Act came into force on 1-9-1940 so that the right of suit accrued on 1-9-1950 when the Act came into force. Clearly then the suit would be barred as it was filed more than 6 years after 1-9-1940.

27. But then Mr. pas Gupta pleads Section 11 of the Indian Soldiers (Litigation) Act under which an Indian soldier is entitled to claim deduction of the period during which he served under any special condition, Section 3 laying down when an Indian soldier may be deemed to be so serving. A reference is made on behalf of the appellant to Ex. 1 which is the 'plaintiff's certificate of discharge. It shows that he served as clerk, Stores, Grade II and that his service was in the S.E. A. C. (South East Asia Command) from 28-12-1943 to 8-7-1944 and again from 6-12-1944 to 9-11-1946. It further appears that the plaintiff was discharged in consequence of the reduction of the Indian Army on demobilisation. These dates afford prima facie evidence that the plaintiff must have spent these two periods totalling 2 years 5 months and. 14 days in serving with a unit for the time being mobilised so that under Section 3(b)(iii) he must be deemed to have served under war conditions and serving under war conditions is under Section 3(a) serving under special conditions. Prima facie, therefore, the plaintiff is entitled to a deduction of this period and if this period is deducted, the suit for reopening the decree will be within time. Of course, had the appellant succeeded on the merits, I would have felt compelled to send this matter to either of the Courts below for considering whether in fact this period was liable to be deducted in computing the period of limitation. But as the appeal fails on the merits and as the data I have referred to constitute at least prima facie evidence that the plaintiff served under special conditions for 2 years 5 months and 14 days he would be prima facie entitled to a deduction of this period and so the plaintiff's suit in so far as it is a suit for re-opening the decree would also be within time. The trial Court's finding therefore on this point is affirmed.

28. As already stated, the suit must be dismissed on the ground, that the plaintiff had no locus stand to reopen the decree as Bholanath had before his death parted with his interest in the disputed property, in favour of defendants 2 and 3 by a deed of settlement which was perfectly 'valid and operative and which was duly acted upon.

29. This appeal also must accordingly falland it is ordered to be dismissed with costs.


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