Wort, J.:— This appeal is by the minor sons of one Bhagwan Sahu who were the defendants in a mortgage suit brought upon the mortgage dated 7th August 1924 executed by Bhagwan Sahu and his nephew Biswanath Sahu. The appeal is in a very small compass and is limited to the question of legal necessity as regards a portion only of the consideration which is recited in the bond as being Rs. 2100. In this appeal we are concerned only with Rs. 586 out of a sum of Rs. 3700 being a debt on a hand-note executed by Biswanath and a sum of Rs. 2675 paid by the plaintiff to the defendants at the time of the registration of the bond. In the argument a question was raised as to the passing of consideration but we are relieved of the necessity of discussing the matter as it is not pressed.
2. The next question is whether there was legal necessity or due enquiry as regards the Rs. 586 and Rs. 2675. As regards item 1 the plaintiff states in his evidence, Biswanath Sahu, Bhagwan Sahu and Jagdeo Lal said they required Rs. 600 urgently and it might be advanced to be deducted when the mortgage bond was executed, and then he goes on to say that he took a new hand-note for Rs. 3700 of which Rs. 586 was to form a part; it is clear on that evidence (there being no evidence whatever of any enquiry as to the necessity of this part of the sum) that the loan cannot be supported on the footing that it was an antecedent debt. As regards the Rs. 2675, the plaintiff's claim in regard to that depends entirely upon the proof of a bona fide enquiry as to the necessity of that advance. As regards that, the plaintiff himself states that it was for the purpose of paying off small creditors whom he names. But it is established by one of the other witnesses that these creditors were not paid by the plaintiff but that the sums due to them were handed over to Bhagwan and Biswanath. Harihar Prasad (plaintiff's witness 2) proves this. He also stated in his evidence:
Jagdeo Lal had told us howmuoh was to be paid to mahajans and how much was to be paid in cash out of the consideration money of Rs. 21,000.
3. Sir Sultan Ahmed frankly concedes that evidence does not establish any bona fide enquiry and that being so, the plaintiff will be entitled to a mortgage decree for Rs. 21,000 less these two items, Rs. 586 and Rs. 2675-10-0, that is to say Rupees 17,738-6-0. But it is contended by Sir Sultan Ahmed that the plaintiff will be entitled to a mortgage decree for the full amount as the bulk of the consideration had been proved. This contention would be relevant and could avail the plaintiff only in a case where it is sought to support a sale of property of a joint Hindu family. But this is a case of mortgage and the plaintiff therefore would only be entitled to a mortgage decree for the amount which is justified by the necessity of the family.
4. The only other question that arises is whether the plaintiff is entitled on the personal covenant to the balance, that is to say Rs. 3261-10-0, against Bhagwan or Biswanath. Biswanath is dead and is represented in this suit by his three widows. It is contended that the plaintiff is entitled to a personal decree as against Bhagwan and the representatives of Biswanath by reason of a payment made by Bhagwan on 27th December 1926, which payment is endorsed on the bond. It is contended that payment removes the far of limitation by reason of Section 20 of the Limitation Act, which provides:
Where part of the principal of a debt is before the expiration of the prescribed period paid by the debtor or by his agent duly authorized in this behalf a fresh period of limitation shall be computed from the time when the payment was made.
5. That this payment of 27th December 1926, in the absence of any evidence that it was made by Bhagwan on behalf of himself and Biswanath does not inure to the benefit of the plaintiff, is clear from sub-s. 2 of Section 21 of the Limitation Act which provides:
Nothing in the said sections renders one of several joint contractors, partners, executors or mortgagees chargeable by reason only of a written acknowledgment signed or of a payment made by or, by the agent of any other or others of them.
6. It is true that the mortgage itself may be kept alive by payment by one of the mortgagors, but when the question which arises, is a matter not of the liability on the mortgage but the liability on the personal covenant, the matter which has to be deter, mined is whether the payment by one joint contractor can be deemed to be the payment of the other joint contractors and that, as S. 20 in my judgment, quite clearly implies quite apart from S. 21, can only arise where the payment is made by the one as I agent of the other. Two joint contractors are not agents one for the other, and as I have already said in this particular case, S. 21 of the Act makes the matter abundantly clear.
7. But the plaintiff will be entitled to a decree for the balance of Rs. 3261-10-0 as against the defendants under. Section 52 of the CPC. The appeal is allowed to the extent I have indicated. The appellants will be entitled to costs in proportion to their success. The cross-appeal is not pressed and is dismissed.
Manohar Lall, J.:— I agree. I desire to make one observation with regard to the case relied upon by Sir Sultan Ahmed in his argument on behalf of the respondents. That is the decision in 90 IC 774,1 the same case being reported in AIR 1926 Cal 150. The headnote in, that case does not correctly represent the actual decision in the case. The facts of the case when carefully examined do not support the proposition contended for by Sir Sultan Ahmed. The plaintiff in that case who was the purchaser of a mortgage of 1899, instituted a suit in 1919 against the first defendant and a transferee from one Lakhan who was his co-mortgagor. Limitation was sought to be saved by reason of payment made by Lakhan, since deceased, in the year 1908. Defendant 3 was the transferee from Lakhan and it should be noticed that defendant 1 had admitted his liability under the mortgage and did not contest the suit. The contention raised on behalf of the transferee from Lakhan was that the payment by Lakhan did not save limitation even against Lakhan or his transferee because payment ought to have been made jointly by Lakhan and defendant 1. That was the only point which was under consideration before the learned Judges of the Calcutta High Court and they held correctly that the payment by one of the mortgagors, namely Lakhan did keep alive the mortgage as against Lakhan and his transferee. This case is no authority for the proposition that payment by one co-mortgagor keeps alive the whole debt even as against the other co-mortgagor; and in my opinion, the correct view of the law is laid down accurately in 55 IC 763.2
R.M/R.K
8. Appeal allowed.