Ramsekhar Prasad Singh and Others vs Mathura Lal and Others

This is an appeal by the plaintiffs against the decision of the District Judge of Shahabad, which confirmed the decree of the Munsif and dismissed the plaintiffs'' suit.

The suit was on the basis of a kistbandi mortgage bond, dated the 16th April 1909, executed by the defendant No. 1 Mathura Lal in favour of the plaintiffs. The principal amount secured was Rs. 291 and the stipulations contained in the bond were that this sum of Rs. 291 was to be paid in 9 annual instalments, the first 7 instalments being of Rs. 33 and the last two of Rs. 30 each. The instalments were to be paid in the month of September each year. There was a condition attached that if default was made in payment of any one of the instalments the mortgagee would be entitled to demand the full amount secured by the bond with interest thereon at the rate of 12 per cent. per annum. The first instalment was payable on the 29th of September, 1909. It appears that there was default in the very first instalment and the plaintiffs brought the present suit on the 13th January, 1920 to enforce the mortgage. In this suit not only the mortgagor, the defendant No. 1, but also the other members of his family were made defendants.

The defence of the defendants other than defendant No. 1 was that the debt was not contracted for any legal necessity of the family and therefore the mortgage was invalid. As regards the claim for a personal decree against the defendant No. 1, it was pleaded that the suit was barred by limitation and the defendant No. 1 further pleaded payment.

It has been hold by both the Courts below that the debt has not been proved to have been contracted for any necessity of the family or for the benefit of the family and that the mortgage was therefore invalid. It has further been held that the personal claim against the defendant No. 1 was barred by limitation.

It is contended on behalf of the appellants that the finding of the learned District Judge on the question of limitation was erroneous. His finding on the question of legal necessity for the loan has not been challenged.

As regards the question of limitation, it is contended that the instalments which fell due within six years of the institution of the suit were not barred by limitation. The question as to whether those instalments which fell due within six years of the suit were or ware not barred by limitation would depend upon the terms of the bond. The bond provides for payment of a sum of Rs. 291 in 9 annual instalments. The instalments which fell due within six years of the date of the suit, namely, the 13th January, 1920, would therefore be saved from limitation. But it is contended that the entire amount fell due when there was default in the payment of the first instalment and therefore the suit ought to have been brought within six years of the first instalment which fell due on the 29th September, 1909. In our opinion this contention is not sound. The contract was for payment of the debt by instalments extending up to the 29th September, 1917. It was left to the option of the creditors to demand the entire amount if there was default in payment of any one of the instalments. It was open to the creditors to avail themselves of this right or not to do so. They could exercise their option and demand payment of the entire amount on default of any one of the instalments or they could under the terms of the bond wait until the last instalment fell due. It was not obligatory for the creditors to bring a suit for realisation of the entire amount as soon as any one of the instalments fell due. If they wait until the expiry of the time for payment of all the instalments, their claim would not be barred in so far as the instalments within the period of limitation were concerned This view has been taken in a number of cases; vide Mata Tahal Vs. Bhagwan Singh and Others, where the facts appear to be very much similar to the facts of the present case, Rup Narain Bhattacharya v. Gopi Nath Mandol 11 C.W.N. 903 and Narna v. Ammani Amma (1916) 39 Mad. 981. In this view of the case it is clear that the claim of the plaintiffs in so far as the instalments from September 1914 to 1917 are concerned was not barred by limitation.

The plaintiffs will, therefore, get a personal decree against the defendant No. 1 for a sum of Rs. 126, being the instalments from September, 1914 to September, 1917, with interest thereon at the rate of 12 per cent. per annum from the date of default of each instalment, and proportionate costs of the suit throughout.