Patna High Court
Punit Deo Narayan Singh And Ors. vs Babu Bhagwati Saran Singh on 2 June, 1921
Equivalent citations: 63IND. CAS.303
JUDGMENT Jwala Prasad, J.
1. The facts of this case have been so clearly set out in the judgment of the Court below as to induce me to borrow largely from it.
2. This appeal arises out of a suit for the recovery of Rs. 19,584-4 0, due to the plaintiffs up to the date if the suit, by the sale of the mortgaged properties now in possession of the defendant, or from other properties appertaining to the estate of Raja Rameshwar Prasad Narain Singh now in the bands of the defendants. The plaintiffs and Gandour Singh, father of plaintiff No. 7, constitute a joint Hindu family governed by the law of Mitakshara. Gandour Singh died leaving the other plaintiffs as survivors. The plaintiffs now form a joint family. Raja Rameshwar Narain Singh was known as the Raja of Maksudpur and his estate as Maksudpur Raj Estate. The Raja died on tie 2nd of December 1902, leaving a widow Rani Sunder Koer and two daughters, by her, Mayan Godawari Koer alias Bari Bachi and Mayan Murat Mati Koer alias Chhoti Bachi.
3. The suit was originally instituted on the 22nd of December 1916, against these two daughters as defendants, as Sunder Koer was dead when the suit was brought. During the pendency of the suit, the eldest daughter, Mayan Godawari Koer, died, leaving three daughters Bari Nanba, Majhli Nanha and Chhoti Nanha. They were substituted as defendants in place of defendant No. 1, Mayan Godawari Koer, by an order of the Court, dated the 11th June 1917. They are minors under the guardianship of their father Bhagwat Saran Singh, husband of Mayan Godawari Koer. He is an executor under the Will (Exhibit V 1, dated the 3rd of July 1917) executed by her and was consequently substituted in her place as defendant by an order of the Court, dated the 14th July 1917. Raja Babu, minor son of Mayan Murat Mati Koer, has also been made defendant under the guardianship of his father Babu Har Kishun Prasad Sahi, husband of Mayan Murat Mati Koer.
4. The fasts, as giving rise to the right of the plaintiffs and the cause of action for the suit and as set forth in the plaint, may be briefly stated as follows:
One Chhotu Lal Agarwala was the proprietor of a village sailed Dewan Fatehpur, On the 20th November 1890, he mortgaged the said village for Rs. 6,000 by a registered mortgage deed to one Baldeo Lal Nagphopha. On the 24th of February 1890, he sold the village to Raja Rameshwar Prasad Narain of Maksudpur by a kabala (Exhibit 1) for Rs. 34,000, and put him in possession there of. Out of this consideration money, a sum of Rs. 7,495 was kept by the vendor with the Raja, the vendee, for payment of the mortgage debt in full, principal and interest, due to Baldeo Lal Nagphopha, as stipulated for in the kabala (Exhibit 1), The Raja, however, did not pay this debt and the result was that on the 22nd of July 1902 Baldeo Lal Nagphopha instituted Suit No. 186 of 1902 in the Court of the 2nd Subordinate Judge, Gaya, to enforce his mortgage, making Chhotu Lal, the mortgagor, and the Raja, the vendee, defendants. (Vide the plaint Exhibit 8, page 43 of the paper-book.) During the pendency of this mortgage suit, on the 2nd December 1902, the Raja died leaving his last Will, dated the 26th November 1902. By this Will (vide copy at page 167 of the paper book) the entire estate was disposed of by giving a life-estate to the widow, and an absolute estate to his two daughters on the death of the widow. In the mortgage suit, after the death of the Raja, his widow Rani Sunder Koer and his brother Chandeshwar Prasad Narain Singh were substituted in his plane. On the 18th of February 1903, the suit was decreed on compromise for a sum of Rs. 23,000-9-0. On the 29th April 1904, the Rani took out Letters of Administration, with a copy of the Will annexed (Exhibit T, at page 166).
5. The Raja held come tenures under the proprietor of 7 annas Tikari Raj, and the rents due from these tenures were assigned by the Tikari Raj to Kailash Singh and others and they sued the Raja for the assigned rents and got a decree. These decree-holders substituted the Rani as an heiress and representative of the Raja and executed the decree and brought Mahal Rajauli appertaining to Maksudpur Raj estate to sale and purchased the same. By some arrangement between these purchasers on the one hand and the Rani on the other, a major portion of the decretal amount was paid and the Rani took time to pay the balance with a view to avoid the sale.
6. In order to pay off this debt of Kailash Singh and others as well as the amount due to Baldeo Lal Nagphopha under the aforesaid mm promise decree, the Rani gave a sarpeshgi thica of some villages appertaining to Maksudpur Raj estate for 15 years from 1311 to 1325 Fasli per zarpeshgi bond, dated the 18th February 1903 (Exhibit 2, page 21), at an annual rental of Rs. 3,500 to plaintiff No. 1, as representing the joint family of himself and Gandouri Singh his brother, who were living jointly. The amount of the zarpeshgi mentioned in the bond was Rs. 25,000. Out of this Rs. 1,500 was paid to Kailash Singh and others, and the sale of Mahal Rajauli was set aside; Rs. 16,000 was paid by the plaintiffs and Gandouri Singh to Baldeo Lal Nagphopha per petition Exhibit 3, page 27, dated the 22nd of August 1903, and thus the compromise was fully satisfied. Thus only Rs. 17,500, out of the consideration money of Rs. 25,000, was paid and the balance remained unpaid. The plaintiff and Gandouri Singh got possession of the zarpeshgi property.
7. Subsequent to this, Chandeshwar Prasad Singh, brother of the Raja, brought a Title Suit No. 50 of 1903 in the 3rd Court of the Subordinate Judge, Patna, against the Rani and her two aforesaid daughters, and claimed an absolute right in the whole of the estate left by the Raja.
8. On the 13th June 1905, the suit was decreed in favour of Chandeshwar Prasad Singh, with respect to the entire ancestral estate of the Raja, while the Rani got a life estate in all the self acquired properties of her husband with a reversion to her daughters and their heirs-at law in due course of succession. This decree was confirmed by the High Court of Calcutta and subsequently there was an appeal to His Majesty in Council. During the pendency of the appeal in the Privy Council, the parties same to terms and the compromise (Exhibit 10) was effected by which the decision of the primary Court was made final and an ekrarnama was executed on the 17th of February 1909 under which the liability to pay the zarpeshgi debts due to the plaintiffs and other thicadars and the money due to Baldeo Lal Nagphopba was east upon the Rani and her two daughters, who agreed to pay the same. The Court of Wards in the meantime assumed management of the estates of both the Rani and Chandeshwar Prasad Singh, and the plaintiffs alleged that on the 24th January 1908, the manager, Court of Ward, dispossessed the plaintiffs from the zarpeshgi villages.
9. On the 20th January 1911, the plaintiffs and Gandour Singh instituted Suit No. 2 of 1911 in the Court of the Subordinate Judge, Gaya, for the recovery of zarpeshgi money amounting to Rs. 17,500, plus Rs. 437 8 0, paid as nazar under the zarpeshgi dead and Rs. 4,839 3 0 on account of interest, making a total of Rs. 22,776-11.C.
10. On the 10th of May 1911, the suit was decreed on compromise against the Rani for Rs. 14,725. The Rani died in Marsh 1912. On the 19th August 1912, the plaintiffs substituted the daughters in place of the Rani and executed their decree against them, which was registered as Money Execution Case No. 263 of 1912 (Exhibit O, page 154) in the Court of the Second Subordinate Judge, Gaya. The daughters objected to the execution on the 20th September 1912 and their objections were registered as Miscellaneous cases Nos. 15 and 26 of 1913. Their objections prevailed both in the first Court, on the 15th of March 1913, as well as in the High Court of Calcutta, on the 2nd August 1915, vide the judgment of the first Court (Exhibit S 10) and of the High Court (Exhibit S 11, pages 122.123, Ashutosh and Newbould, JJ.). It was held that the daughters Mayan Godawari Koer and Mayan Murat Mati Koer were not bound by the decree, dated the 10th May 1911, passed in favour of the plaintiffs and Gandour Singh.
11. The plaintiffs base their cause of action practically upon the aforesaid decision in the Miscellaneous cases Nos. 15 and 26 of 1913. Their case is that the zarpeshgi money, for which the decree dated the 10th May 1911 was obtained, went to satisfy the mortgage decree of Baldeo Lal Nagphopha and this was a charge upon village Dewan Fatehpur appertaining to the estate of the deceased Raja and that the village is now in the occupation and enjoyment of the defendants; that by the aforesaid ekrarnama, dated the 17th February 1909, the defendants were liable to pay the decree of Baldeo Lal Nagphopha and the zarpeshgi money of the plaintiffs; that the defendants are now in possession of the assets of the Rani and also they are liable to pay the plaintiffs' dues as Hindu daughters and heirs of the late Raja, as by the plaintiffs' money the estate of the deceased Raja was benefited; and that Rani Sunder Koer executed a deed of surrender (Exhibit 4), dated the 20th November 1910, in favour of her two daughters and by the terms of that deed, the defendants are liable, the deed being the basis of their title.
12. The plaintiffs seek a declaration and pray for recovery of the amount due under the compromise decree with subsequent interest, in all Rs. 19,584-10, from the defendants, or the sale of the property hypothecated in the mortgage-deed by virtue of the original contract embodied in the zarpeshgi deed. It is stated in the plaint that the original contract in the zarpeshgi deed is saved from limitation on account of the acknowledgment by the Rani in the shape of compromise in the suit as well as on account of the fact that the plaintiffs were prosecuting in good faith the execution proceedings in which the objections by the defendants were filed and subsequently allowed.
13. The defendants have adopted the written statement filed by defendant Mayan Godawai Koer while she was alive. The written statement is prolix and contains suparfluous and irrelevant matter; a great portion of it is an attack upon the integrity of Gandour Singh, brother of plaintiff No. 1, to whom the Raja in the Will referred as a trustworthy man and who he directed should manage the affairs of the estate on his behalf during; the possession of the estate by the widow and his daughters. They assert that upon the death of the Rani, on the 27th March 1912, the daughters came to possess the property by virtue of the Will executed by the Raja and neither the defendants nor the properties in their hands are liable for the claim of the plaintiffs and that the decision in Miscellaneous Cases Nos. 15 and 26 of 1913 operates as res judicata and that the present suit is barred by Section 47 of the Code of Civil Procedure. They deny that they succeeded to the estate by the rule of inheritance. Their also impugn the necessity for raising the money under the zarpethgi deed of the plaintiff, inasmuch as the Rani had more than sufficient money of the estate in her hands. They also state that the plaintiff's zarpeshgi is ineffective and inoperative as against the defendant, inasmuch as the Rani did not obtain permission of the Court which grunted Letters of Administration, to make any such alienation. They deny the plaintiff's right to bring the suit after be obtained the simple money decree on compromise against the Rani, stating that the original contract under the zarpeshgi deed was extinguished by virtue of the money decree. They farther state that the debt in question does not find place in the ekrarnama mentioned in the plaint and that the defendants did not undertake to pay off any such does. They plead limitation, want of cause of action, and say that the suit is not maintainable. On behalf of Mayan Murat Koer it is further contended that her title is not based upon the deed of surrender, but it merely accelerated her possession as the Rani withdrew her possession.
14. Upon the pleadings the following issues were raised in the Trial Court:
1. Is the suit maintainable?
2. Have the plaintiffs got any cause of action for the suit?
3. Is the suit barred by res judicata?
4. Does Section 47, Civil Procedure Code, bar the suit
5. Are the defendants liable for the plaintiffs' claim?
6 Is the plaintiffs' claim saved from the bar of limitation?
7. Are the plaintiffs entitled to ignore the decree dated 10th May 1911 and fall back upon the zarpeshgi? If so, was it executed for legal necessity. Is it valid, legal and binding on the defendants?
8. Was defendant No. 1 a consenting party to the deed of surrender, dated 2th November 1910, executed by the Rani? Is the deed of surrender invalid and illegal?
9. To what, relief, if any, are the plaintiffs entitled?
15. The learned Subordinate Judge took up Issue No. 7 first. He held that the mortgage decree, (Exhibit 9), dated the 18th February 1903, obtained by compromise against the Rani or eat ed a valid charge upon the mortgaged property, Dewan Fatehpur. This village was purchased by the Raja subject to the mortgage lien of Baldeo Lal Nagphopha, with an undertaking to pay it off and to discharge it. He failed to do so and the suit was brought against him. He died and the widow and his brother Chandeswar Prasad Narain Singh were made parties. The decree was obtained against the Rani alone prior to the Probate having been obtained. Chandeswar Prasad Narain Singh in the meantime disputed the right of Raja Rameshwar Prasad Narain Singh to dispose of the properties by the Will. The mortgagee Baldeo Lal Nagphopha was a stranger to the family; be ignored the dispute and recognised the succession of the Rani to the estate and obtained a decree against her on compromise. The mortgaged property, village Dewan Fatehpur, was the self acquired property of the Raja and with respect to it by the ultimate compromise between Chandeshwar Prasad Narain Singh and the widow in the year 1909, the Will remained operative and consequently the right of the Rani and the daughters with respect to it was unaffected. In this view I agree with the Court below and also in the view that the dispute between the parties as to whether the widow succeeded to the Raja under the Will or was Hindu widow, does not affect this question. I also agree with the view of the Subordinate Judge that the consideration money did pass under the zarpeshgi deed, dated the 18th February 1903, executed by the Rani in favour of the plaintiffs, and that out of this consideration money Re. 1,500 was paid to Kailash Singh and others for avoiding the sale of Mahal Rajauli and Rs. 16,00 was paid towards the satisfaction of the mortgage decree (Exhibit 9) of Baideo Lal Nagphopha, and that the plaintiffs got possession of the property on the basis of the zarpeshgi deed bat that they were dispossessed by the Court of Wards in the year 1909. The learned Subordinate Judge further held that there was no money in the treasury and that the Rani was hard up financially and that she could not pay off the debts of Kailash Singh and Baldeo Lal Nagphopha without taking the loan. These findings are not disputed in this appeal by any of the parties. The learned Subordinate Judge also dismissed the allegations made by the defendants against Gandour Singh, brother of the plaintiffs, of fraud and misappropriation. They are irrelevant for the purposes of this case and need not be referred to.
16. The crucial point in the case, which was vehemently argued on both sides, is whether the personal decree obtained on compromise against the Rani by the plaintiffs, after their dispossession from the mortgaged property, on the 10th of May 1911 barred the present action to enforce the mortgage under the terms of the deed (Exhibit 2), dated the 18th February 1903, by sale of the mortgaged property. The learned Subordinate Judge held in the affirmative. His arguments are that the Suit No. 2 of 1911 was a personal action against the Rani upon the covenant contaiend in the mortgage-deed for recovery of damages in case of dispossession: vide plaint (Exhibit 7). The principal ground for the decision of the learned Subordinate Judge is that the action based upon the covenant in the mortgage-bond (Exhibit 2) for damages on account of their dispossession was a personal one against the Rani, and that the plaintiffs relinquished their right, if any, to enforce the mortgage. Says the learned Subordinate Judge: "the zarpeshgi contract in Exhibit 2 merged in the decree, There was a transfer from the dominion of contract to the dominion of judgment. The plaintiffs cannot fall back upon the original contract now. The decree (Exhibit 10) stands good and unchallenged. It is not sought to be set aside. This cannot be done, as the consequence would be quite against the plaintiffs' interest and a serious anomaly will arise, for six suits including the suit of which Exhibit 10 is the decree were settled by one compromise." In this view the learned Subordinate Judge appears to me to be wrong. The suit for damages brought by the plaintiffs on account of their dispossession from the mortgaged properties by the Court of Wards was a personal one based upon a distinct covenant in the mortgage bond to the effect that if the whole or any portion of the lease-hold properties goes out of possession of the lessee mortgagee, and he be liable for any damages or compensation, then the executant the landlord, and the Raj shall be liable for the same as well as for payment of the principal amounts, zarpeshgi, damages and compensation. The Rani was the executant of the bond and was, therefore, personally liable under this clause. Section 68 of the Transfer of Property Act also confeus such a right upon the mortgagee in possession of the property when the mortgagor fails to deliver the same to him or to secure the possession thereof without disturbance by the mortgagor or any other person: vide Pargan Pandty v. Mahatam Mahto 6 C.L.J. 143. The right of the mortgagee to obtain a personal decree against the mortgagor, conferred by the express covenant in the bond and reoognised by the Statute, is distinct from the right to enforce his claim under the mortgage by the sale of the mortgaged properties. This is also clear from the fact that unless there is an express covenant in the bond hypothecating and charging the property with the mortgage-debt and giving a right to the mortgagee to enforce his claim by sale of the property, the mortgagee in possession is not entitled to bring a mortgage suit for the sale of the property under Order XXXIV of the Code of Civil Procedure. In the present case there is a distinct clause in the bond clearly stipulating that the lease-hold properties were mortgaged and hypothecated as security for the principal money and interest on the sum advanced at the rate mentioned in the bond to the date of realisation. The mortgagee first tried to enforce the former covenant in the bond giving him a right to a personal decree against the mortgagor. That decree after the death of the Rani has failed and the execution of the decree was disallowed upon the objection of the defendants, in Miscellaneous Cases Nos. 15 and 26 of 1513 per judgments of the 26th August 1915 of the first Court (Exhibit S-10) and of the High Court (Exhibit S 11). That decree has been held by the High Court of Calcutta to be incapable of execution and enforcement. It is now waste paper to the plaintiffs, Kadma Pasin v. Muhammad Ali 50 Ind. Cas. 134 : 41 A. 399 : 17 A.L.J. 481, Ibrahim Goolam Husenbux v. Nihalchand Waghmal 55 Ind. Cas. 536 : 44 B. 366 : 22 Bom. L.R. 113. The plaintiffs are, therefore, now trying to enforce the latter clause in the bond pledging the mortgaged property as security for the zarpeshgi money and interest. It is new settled that such an action is permissible provided there is a distinct hypothecation clause in the bond; there is admittedly such a clause in the bond; vide Gobinda Chandra Pal v. Kailash Chandra Pal 41 Ind. Cas. 78 : 45 C. 530. Order XXXIV, Rule 14 of the Code of Civil Procedure, has distinctly provided for such a contingency. It runs as follows: "Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order II, Rule 2." In face of this clear provision, the attempt to bar the present suit of the plaintiffs by reason of Order II, Rule 2, appears to me to be vain and futile. That rule requires that "the plaintiff shall include the whole of the claim which he is entitled to make in respect of the cause of action." This is with a view to prevent the plaintiff from bringing his action piecemeal. Order XXXIV, Rule 14, is an exception to that rule. It is needless to consider all the authorities cited at the Bar in face of the clear statutory provision. The plaintiff has two remedies: (1) to pursue the mortgagor personally upon a personal covenant in the bond and (2) to enforce the mortgage by selling the property for the satisfaction of his debt. He can have recourse to the one or the other at his option. All that is required is that he cannot sell the mortgaged properties without instituting a suit for sale in enforcement of the mortgage. This the plaintiffs have now done and they are entitled to sell the mortgaged properties in satisfaction of their mortgage debt inspite of their having obtained a personal decree against the executant of the bond, the late Rani; vide Indar Pal Singh v. Mewa Lal 23 Ind. Cas. 429 : 36 A. 264 : 12 A.L.J. 374, Kangaya Gurukal v. Kalimuthu Annavi 27 M. 526 (F.B.), Marturu Subbamma v. Gadde Narayya 43 Ind. Cas. 4 : 41 M. 259 : 33 M.L.J. 623 : 22 M.L.T. 429 : 6 L.W. 738 : (1917) M.W.N. 828 (F.B.) and Jatar Husain v. Ranjit Singh 21 A. 4 : A.W.N. (1898) 167 : 9 Ind. Dec. (N.S.) 713.
17. There can also be no doubt that the mortgage executed by the Rani was for valid consideration and in order to satisfy the mortgage of Baldeo Lal Nagphopha upon Dewan Fatehpur. This is the village which, both under the Will and the subsequent High Court decree between Chandeshwar Prasad Narain Singh, claimant of the estate, and the Rani and the daughter, has fallen into the share of the latter. If the mortgage of Baldeo Lal Nagphopha, which the Raja was bound to satisfy under the sale deed dated the 24th February 1892 (Exhibit 1), had not been paid off, the property would have been lost and neither the Rani nor the defendants would have got it. Therefore, the defendants were benefited by the loan of the plaintiffs whereby the said mortgage on Dewan Fatehpur was discharged. The consideration of the mortgage-bond was, therefore, valid and proper and the Rani was competent, she holding the property as life-tenant, whether under the Will or under the compromise between the claimant Chandeshwar Prasad Narain Singh and herself and the daughters, or as a Hindu widow, to execute the mortgage-bond in suit. The properties mortgaged in the bond of the plaintiffs were validly charged with the debt of the plaintiffs; nor do I see, as the learned Subordinate Judge thinks, that any complication arises, because Exhibit 10 purports to compromise six suits pending at that time. That decree, as I have held above, contains distinct terms so far as the claim of the plaintiffs for personal damages based upon the mortgage bond is concerned.
18. Another objection has been levelled against the present suit. The learned Subordinate Judge says, "only two of the zarpeshgi properties, the share of Dharhar and Ranipur, fell to the share of the Rani and her daughters, while the other three zarpeshgi properties were given to Chandeshwar Prasad Narain Singh in the compromise between the Rani and the defendants on the one hand and Chandeshwar Prasad Narain Singh on the other and this is admitted by the learned Vakil for the plaintiffs; can the plaintiffs follow the zarpeshgi properties in the hands of Chandeshwar Prasad Narain Singh who is not a party to the case?"
19. In paragraph 11 of the plaint the plaintiffs give the reason for omitting some of the mortgaged properties and the shares in the mortgaged villages that have since the execution of the mortgage gone to the possession of the Raja by the decree of the Subordinate Judge dated the 13th June 1905, which was upheld by the High Court on appeal on the 2nd March 1906. After reciting the litigation resulting in the aforesaid decrees, paragraph ll. says: "that under the said decree 12 annas of Mouza Dhurihar and 7 annas prohata of Monzah Ranipur of which the kham is 9 annas 4 dams and the whole of Kutlupur was adjudged to be the property of Babu Chandeshwar Prasad Narayan Singh, while 4 annas of Mauza Dhurihar and 4 annas of Mouza Ranipur of which the kham is 6 annas 8 pies and the whole share of Eknar Pachhara was adjudged to be the property of Rani Sander Koer as heir to her husband."
20. Chandeshwar Prasad Narayan Singh, who had claimed the Maksudpur estate after the death of the late Raja Rameshwar Prasad Narayan Singh, was not a party to the mortgage, nor did he succeed to the self-acquired properties of the Raja including Mauza Dawan Fatehpur, to save which the mortgage was executed by the Rani. He is not, therefore, bound by the mortgage in question. The property that has been awarded to him by the decree of the High Court can no longer be liable for the mortgage-debt. The Rani asserted her rights to succeed to the entire estate under the Will of the Raja, and she was in possession of the property when the plaintiffs advanced the money and took the mortgage of the properties in question. The plaintiff's right under the mortgage with respect to such of the mortgaged properties as have been allotted to Chandeshwar Prasad Narayan Singh has been lost to them by reason of the decrees over which they had no control and, therefore, their right under the mortgage has now been transferred to such of the mortgaged properties as have fallen to the share of the Rani and the daughters under the Court's decrees. The plaintiffs are, therefore, entitled to enforce their rights under the mortgage from such of the properties as were in possession of the Rani and are now in possession of the daughters who were benefited by the loan, as already shown above, it having satisfied the mortgage on Dawan Fatehpur, a self-acquired property which has fallen to the share of the defendants. No question of splitting up of the mortgage arises nor of transferring the entire encumbrance upon some of the properties: vide Sheo Tahal Ojha v. Sheodan Rai 28 A. 174 : 2 A.L.J. 630 : A.W.N. (1905). It was argued that the plaintiffs are not entitled to charge the portions of the mortgaged properties with the liability of the mortgage which was upon the entire mortgaged property. In the circumstances of this case there is no substance in this contention; the plaintiffs did not do so of their own accord, but their lien over the mortgaged properties has become unenforceable on account of the Court's decrees. Issue No. 7 must, therefore, be decided in favour of the plaintiffs, I differ from the view taken by the Court below and set aside its decision upon this issue.
21. No objection as to the admissibility of the mortgage bond on account of its not having been filed before the Court of Wards, under Section 10A-1 and 10B-1 of Act IX of 1879 B.C. (Court of Wards Act) has been pressed before us and the finding of the Court below has, therefore, been accepted. The document was, therefore, admissible in evidence. The deed of surrender, dated the 20th November 1910, executed by the Rani in favour of the defendants need not also be referred to, for it is, as held by the Court below, immaterial for the purposes of this case , the Rani having died and the properties being in possession of the defendants.
22. The finding of the Court below on Issue No. 8 that the deed of surrender was valid and genuine has not been challenged in this Court.
23. The learned Court below is wrong in holding that Section 47 of the Code of Civil Procedure bars the present suit, or that the suit was barred by res judicata, and in deciding Issues Nos. 3 and against the plaintiffs. No valid reason has been given for this view by the learned Subordinate Judge, nor has any attempt been made to support it in this Court.
24. It has already been shown that the lower Court's view that Order II, Rules 1 and 2 of the Code of Civil Procedure, affects the suit is erroneous. Order XXXIV, Rule 14, is a complete answer to this.
25. The plaintiffs' suit to enforce the mortgage is not barred by limitation, inasmuch as it is within 12 years from the 4th of January 1908, when they were dispossessed by the manager of the Court of Wards in charge of the estate of Chandeshawar Prasad Narayan Singh and of the widow of the late Raja. So long as the plaintiffs were in possession of the properties, they were receiving the income of the properties in lieu of interest on the mortgage-debt and consequently they could not bring a suit to enforce the mortgage. It is only after they were dispossessed and their right to appropriate the usufruct of the property in lieu of interest and debt was denied, that their right to sue accrued under Section 68(c) of the Transfer of Property Act: vide the unreported case of Jainandan Prashad v. Babu Baijnath Saran 63 Ind. Cas. 297 : 2 P.L.T. 229, First Appeal No. 18 of 1918, and the authorities quoted thereunder. I, therefore, disagree also with the view taken by the learned Sub ordinate Judge as to Issues Nos. 1, 2, 6 and 9.
26. I, therefore, decide all the issues in the case in favour of the plaintiffs and reverse the decree of the Court below and decree the plaintiffs' suit, with costs throughout. Let a mortgage decree be prepared for a sum of Rs. 19584-4 0 principal, with interest at the rata specified in the bind from the date of dispossession alleged to the plaint up to the date of grace, which will be six months from this date, and thereafter the interest will run at the rate of six per cent. till realization. In default of payment on the date of grace of the principal sum and interest, the properties mentioned in the plaint will be sold.
Adami, J.
27. I agree.