Regular Appeal from a decision passed by Mr. Justice Pontifex, in the Original Jurisdiction of the High Court, dismissing the plaintiff's suit with costs. The facts of the case as follows:—
Roop Narain Ghosal, who died in the year 1839, was at his death possessed of considerable property in Calcutta, a portion of which was subject to a mortgage in favour of a Mr. Money. He left six sons and a widow surviving. The eldest son, Ram Chunder Ghosal, took out letters of administration to his father's state and continued in possession as kurta of the joint-family. In 1842, Hurrish Chunder, one of the younger sons, got into debet, and in order to pay off his creditors he applied to his eldest brother Ram Chunder for a loan, who advanced to him Rs. ???,700, and agreed to make further advances, in all not to exceed Rs. 8,000. By a bond and warrant of attorney, dated the 1st of February 1842, which recited the receipt of Rs. 3,700 and the ??? for further advances, Hurrish Chunder bound himself ??? the penal sum of Rs. 20,000 to pay these advances, with ??? interest at the rate of 12 per cent per annum, the ??? of the bond being, that if Hurrish Chunder would on ??? pay to Ram Chunder the entire amount of principal and ??? due on demand made, the bond would he void; otherwise was to continue in full force and effect. By a mortgage deed ??? even date with the bond and warrant of attorney, Hurrish Chunder mortgaged the sixth share of his father's estate, then in ??? hands of Ram Chunder as administrator, as further security ??? the payment of the Rs. 3,700 and further advances. The ???, which recited the bond and warrant of attorney, contained ???, that on default of payment on demand, Ram Chunder, the ???, might enter on the premises, and keep and enjoy the ??? without let or hindrance from Hurrish Chunder, or any ??? claiming under him. In April 1844, Ram Chunder made ??? last of these advances, the whole sum then advanced being ??? 7,172-10-0.
??? 1847, the members of the family (the six sons) commenced make arrangements for an amicable partition, and it was ??? that the plaintiff in consideration of his mortgage should ??? some Bank Stock and part of a certain property called the ??? Budge Talook, which would otherwise have fallen to the ??? of Hurrish Chunder. The arrangements for the partition fell ??? in consequence of Mohes Chunder, one of the brothers ??? signs of lunacy. Although provision was made for the mortgage debt being paid off on partition, the plaintiff that at any time during the negotiations he had demand money from Hurrish Chunder.
Mohes Chunder was adjudged a lunatic in 1850, and Hurrish Chunder, the mortgagor, died in 1851, leaving a widow, ???, and a daughter, Hemandini Debi, the present ???. In 1859, Ram Chunder filed a suit for partition and an ??? the Supreme Court against the other members of the family, the representatives of Hurrish Chunder among ??? decree was given for an account, but as the taking of the ??? was not proceeded with, the suit was finally dismisses mention of the mortgage by Hurrish Chunder appears in ??? in that suit.
In 1871, Eshan Chunder, the youngest of the six ??? filed a suit for partition against the present plaintiff a other members of the joint-family, and on the 17th of 1874 a decree was passed that the six sons (or the ??? of such as were dead,) were entitled each to one-sixth of ??? of the father, Roopnarain Ghosal, deceased, and ??? commission to issue for the purpose of making a partition by and bounds. In the proceedings in that suit no ??? pears to have been made by the present plaintiff of the ??? to him by Hurrish Chunder.
From 1842 to 1876 Ram Chunder had remained in ??? of the joint family property as manager, but on the 13th ??? 1876, the partition proceedings being almost ??? he made a demand on Omritomoye Debi, the widow of Hurrish Chunder, for the money advanced on the mortgage of 1872 compound interest at the rate of 12 per cent per annum, ??? in all to Rs. 31,035-4-0. The demand not ??? acceded to, Ram Chunder brought the present suit for an ??? to prevent the representatives of Hurrish Chunder from possession of their share under the partition decree, ??? closure, and for an account. About the same time he ??? similar suit for the same relief against the committee of Chunder, (who has been a lunatic since 1850,) on a ??? mortgage of precisely the same character and with the ??? attending it as that of Hurrish Chunder. ??? after the institution of the suit against the representative of Hurrish Chunder, the partition was completed, and the defendant was put in possession of Hurrish Chunder's share, which was taken out of the hands of the plaintiff.
The defendant denied all knowledge of the mortgage, pleaded that it was a forgery, and that if it were not a forgery it had been executed under the undue influence of the plaintiff and by fraud. The case having come on for hearing, the following judgment was delivered by Pontifex, J.:—
A good many issues have been settled in this case, but none are necessary to be dealt with, except the 1st, 5th, 6th and 7th. In respect of the 5th and 6th issues, I find that Hurrish Chunder Ghosal did execute the mortgage, and that he did not execute it under undue influence. With respect to the 7th issue, I have considerable doubt whether the evidence adduced is sufficient to ??? the Court that the plaintiff had separate funds at his ??? large enough to enable him to advance the amounts alleged ??? have been paid in respect of both Hurrish Chunder's and ??? Chunder a mortgages, and to make the purchases of the ??? property the plaintiff still possesses; but it is not necessary ??? my opinion to decide that, because on the first issue I consider ??? plaintiff long since barred by limitation, and that his ??? has been the possession of a trustee, and not of a ???. From 1842 up to the institution of this suit the ??? has not paid himself a pice for principal or interest, and has ??? no demand whatever, but has paid the entire fruits of Hurrish Chunder's share to Hurrish Chunder and his ???; and nothing has been done since 1847 by the plaintiff to ??? the mortgage alive. No demand has been made for payment of principal or interest between 1846 and 1876, when the ??? written demand was made for 3¼ lakhs of rupees in respect principal and accumulations of interest on a mortgage executed ??? for an advance of less than Rs. 8,000. What makes ??? remarkable that no previous demand or mention was made ??? of the mortgage is, that in 1851 Hurrish Chunder died ??? his widow succeeded. No demand was made on her, though more than the whole of her late husband's share had, if the mortgage then existed, been consumed, but the whole fruits of that share have been paid to her. Even if the express law of limitation does not apply, (although I think it does apply,) I think it would be the duty of the Court to refuse a stale demand like this, which is not brought forward till every one who could dispute it is dead. The plaintiff's claim must be refused with court.
The plaintiff appealed.
Paul, (Advocate-General,) and Evans, for the Appellants.
Paul.—The suit is clearly in time. No limitation ran until default, and there was no default, until the demand was made in 1976. We were then, as we had been from 1842, in possession, for the foreclosure decree of itself did not change the nature of the property; it still remained joint—Prawnkiseen Mitter v. Sreemutty Ramsoonderry Dossee, Fulton, 110. The question of laches does not touch our case. So long as we are strictly within the law laches cannot affect us—Mankee Koer v. Sheikh ???, 14 B.L.R 315. We are clearly entitled to an ???; of course, we fail, if on taking the account it appears that we have received more than the amount of mortgage-money and interest.
Evans, on the same side.—The learned Judge was clearly wrong on the point of limitation; he does not seem to be quite ??? of his ground in this respect. He also says, that we are barred by laches, but that point is settled by the case in 14 B.L.R, 315. We come before the Court as parties in possession of property over which we have a lien, and we ask the Court to prevent the defendant from taking the property out of our hands ??? paying the money which he owes us. It does not matter how we came into possession. Suppose we were in it first as trustee. The cestui trust assigned it over to us, and it cannot be that he will be allowed to take the property out of our hands without paying our debt, or to plead limitation—Wynne v. Stein, 2 Phillips, 303.
[Garth, C.J:— The question is, holding as manager, can ??? without any notice to the mortgagor, claim to hold as mortgagee?]
Evans.—Supposing there was anything inconsistent in holding ??? both as manager and mortgagee, I say we made a ??? and before we were turned out of possession we filed our plaint claiming as mortgagee. But there is nothing inconsistent in holding possession both as manager and mortgagee. When an attorney keeps a document, you don't ask him when he changed his possession as agent into possession as lienee. If I put securities of mine in my banker's hands, he holds them in trust for me, his possession is mine, but if I give him a letter of hypothecation, he can retain them as against me. So now, plaintiff's position was at first that of a trustee, and the mortgage is equivalent to a letter of hypothecation under which he can hold possession. It may be that we cannot now get the injunction which we pray for, as we have been turned out of possession by the defendants, but we are entitled to a decree for possession, and a declaration of our lien. With that declaration we should be able to recover possession of that which has been wrongfully taken from us; without it, we should be placed in the position of parties out of possession, and laches might affect us in that case.—Fry on Specific Performance, 322.
Phillips and Bonnerjee for the Respondents.
Phillips.—The question is, in what capacity was the plaintiff in possession. If he was not in as mortgagee, he is barred by limitation under cl. 12, section 1, Act XTV of 1859, for their cause of action arose at the date of the execution of the mortgage. No demand was necessary to set limitation running; otherwise it must be held that the mortgagee would have an unlimited time to come into Court; but even if a demand were necessary, here judgment was entered up, and that is always sufficient demand for payment on a bond.
[Garth, C.J:— Judgment was entered up for the penal sum. That was no demand of money due under the mortgage deed. Is not a demand necessary in every case, except that of a simple premise to pay—Carter v. Ring, 3 Campbell, 459; Gibbs v. Southam, 5 B. and Ad., 911?]
Phillips.—The proceedings for the liquidation of this mortgage at the time of the partition in 1847 are sufficient evidence of a demand having been made, and the Court on that evidence will presume it in this case. It is now admitted that this is a suit for foreclosure, i.e, a suit for land within the ??? XIV of 1859, section 3 of which shows that where no ??? specified, limitation will run from the date of the mortgage demand is required to set the statute running—??? Lightfoot, 8 M. and W., 553; Vencataramanier v. ???, 7 Mad. H.C.R, 298. The parties here are Hindus, Hindu law no demand is necessary—Colebrooke's Diges chap. 5, section 166, pl. 2; nor can the amount of ??? coverable exceed the principal.
Bonnerjee, on the same side.—The mortgage money was able at once, and therefore limitation ran from the ??? advance—Jackson v. Ogg, 1 Johnson, 397; Nocoor Chunder v. Kally Coomar Ghose, I.L.R, 1 Cal., 328; and ??? barred, for plaintiff was in possession as agent and not a ???—Williams v. Pott, L.R, 12 Eq., 149. At any ??? three years' interest can be recovered—Steads' Mortgage, 2 Ch. D., 713.
Evans, in reply.—A mortgagee would not be allowed advantage of his refusal or delay in making a demand—??? Mortgages, vol. 2, p. 735; the objection that the mortgage take his own time to make a demand therefore loses ??? Williams v. Pott decides nothing more than that an ??? hold adversely to his principal. It would be ??? the property been mortgaged to the agent. As to the ??? of a demand, see Leake on Contracts, 2nd Ed., 642-3.
It is said that we are barred by the provisions of Act 1859, but we are not concerned with that Act, as this governed by Act IX of 1871. The repeal of Act XI away any effect which it might have had in barring our ??? set us free. There is nothing in the contention that a ??? barred cannot be revived by the repeal of the Act. Limitation are mere rules of procedure—Ruckmaboye v. Chund, 5 Moore's Ind. App., 234; Huber v. Steiner. effect is merely to close the doors of the Court ??? suitor after a certain time; repeal the Act, and ??? the Courts again to every person who has a legal right ??? Except, then, Act XIV totally extinguished the ??? not merely barred the remedy, we are free to bring our as ??? repeal, subject, of course, to the Limitation Act now in force ??? Nadhavbhai Shinbhai v. Fattesing Nathubhai, 10 Bom. H.C.R, 487, it was held that a debt barred under Act XIV of 1859 can be sued for after the repeal of that Act, and is governed by the provisions of Act IX of 1871, the very point now contended for. In The Administrator-General v. Hawkins, I.L.R, 1 Madras, 267, it was held that the Administrator-General of Madras is authorized to pay a barred debt. Neither of these cases can be supported, unless on the ground that Act XIV of 1859 merely bars the remedy and does not extinguish the right.
[Markby, J.:— Referred to the case of Gunga Gobind Mundul v. The Collector of 24-Pergunnahs, 11 Moore, 845; 7 W.R, 12 P.C]
Evans:— That case merely decides that, if a lessee neglects to bring a suit against his neighbour for a disputed piece of land until his claims have become barred by limitation, he cannot better his position by dragging in his landlord as a co-plaintiff. The case was never intended to decide that Act XIV of 1859 extinguished the right; if it were, the Privy Council would not, in Maharana Fattehsangi Jaswatsanghi v. Dessai Kallianraiji ???, L.R, 1 Ind. App., 35, 51, 54, have expressly declined to ??? a decision on the point. In Finch v. Finch, 45 Law Jour. ???, 816, it was expressly decided that Act XIV of 1859 only ??? the remedy; if it had been considered as barring the right, ??? would have been given to it—Harris v. Quine, L.R, 4 Q.B, 653. The Act was drawn up on the principle of the English ???, and it is laid down in Westlake's International Law, and in Willimore's International Law, vol. 4, that in the English Law ??? of limitation merely bar the remedy. See also Sugden's ??? and Purchasers, 10th ed., vol. II., p. 318; and Pollock ??? Contracts, 2nd ed., 570, et seq.
[Markby, J., referred to Krishna Mohun Bose v. Okhilmonee ???, I.L.R, 3 Cal., 335, a case in which the point under ??? had been decided by himself and Mr. Justice Prinsep ??? to Mr. Evans's contention.]
Garth, C.J:— Section 60 of the Contract Act is strongly in ??? favour, Mr. Evans. But supposing you were to persuade ??? that you are right in your contention, I can do nothing. My brother Markby adheres to his former decision, and I alone ??? not refer the point to a Full Bench.]
Evans:— I shall now go on to the question of demand. The covenant is to pay on demand, and on default the mortgagee may enter. That cannot be construed to be an idle formality, ??? Chunder could not enter before demand. A demand is always necessary, because the condition of the bond is not broken until demand. [Counsel went on to contend that the transaction was a real one, and that there was no evidence of a demand having been made.]
The following judgments were delivered by the Court (1):—
Garth, C.J:— This case comes before us under circumstances which ??? give rise to much suspicion and distrust, and which should induce us, in my opinion, to make every reasonable presumption in the defendants' favour.
It is brought by the managing member of a Hindu family to enforce a mortgage said to have been made to him by one of his brothers, Hurrish Chunder Ghosal, so far back as the 1st of February 1842 more than thirty-six years ago. The original consideration for this mortgage having been (according to the plaintiff's own story) less than Rs. 8,000, his present claim upon it, with compound interest, is about three lakhs and ten thousand. It is brought at a time when the brother, who is said to have made the mortgage, is dead, when his widow is dead, and when in fact no evidence remains of the real nature of the trausaction, except that of the plaintiff himself; and the lady against whom the suit is brought, is a daughter of the alleged mortgagor, who had never even heard of this mortgage, and against whom no claim was ever made, until a partition of the family property took place about three years ago, when the plaintiff, who had been in possession of the whole property for forty years, as the elder brother and kurta of the family, was about to be dispossessed of it under that partition, and was called ??? by the other members of the family to render an account of ??? receipts. During all this time, whilst this enormous debt was, in process of accumulation on compound interest, the plaintiff was receiving his brother's one-sixth share of the profits of the property, and making that brother an allowance for his maintenance. No one knows, or can know, except himself, whether, assuming the mortgage to have been a bona fide transaction, he has re-paid himself any, and if so, what part of the mortgage money; and, according to the plaintiff's own account, no demand of the money has ever been made, and he has been holding this terrible engine over the heads of his brother's family, until it should answer his own purpose to put it in force again. It is a most extraordinary circumstance, and we think it is scarcely possible to believe that the plaintiff kept no books of account in which this or any of his private transactions was entered. It is well known that every Hindu, of any education, who engages in business matters on his own account, keeps books. The plaintiff professed to keep regular accounts of the joint-family property. He says that he was a saving man, and had several properties and money transactions of his own, and yet he produces no books, and states that he never had any.
This is just the sort of case, in my opinion, which courts of ??? should approach with the greatest caution, the proof of which they should watch with the utmost strictness; and in which, as I said before, every fair and reasonable presumption should be made in favour of the defendant. Approaching it, however, in this way, I can see no good reason to doubt the fact of ??? execution of the deed by the mortgagor, or the receipt by ??? of the original mortgage money.
Whether the money so lent belonged to the plaintiff himself, or to the joint-family, or whether the mortgage itself ??? have been only a contrivance for protecting the mortgagor's ??? from the hands of creditors, appear to me questions ??? which, in the absence of any evidence, it is impossible for ??? form any reliable opinion. If the plaintiff's story is to be ???, the money was lent out of his own earnings; and the ??? that Rs. 700, which was lent to the mortgagor out of the ??? property, appears to have been re-paid to the joint funds, ??? this mortgage money was not, affords some reason for ??? that the money was the plaintiff's private property. ??? this ??? the ??? question which arises is that ??? by the ??? mortgagor deed the money ??? on demand” a mere formula, ??? the money was ??? at ???, as in the case of a ??? on demand ??? v. Ball, 10 Mod. ???—??? they mean that the money was not to be payable, the ??? to recover it put in force, until after an ??? demand is in the case of a bond payable on demand? Garter v. Ring, ??? Comp. 459.
The Learned Judge in the Court below seems to have ??? that the loan became payable as once, and that the was ??? by ???; and that even if this were not so, laches of the plaintiff was quite sufficient to debar him in ??? any remedy. After hearing the case very fully and ???. I ??? I cannot take this view. I have, after ???, arrived at the same conclusion as the ??? Judge. ??? upon a different ground altogether. It was ??? on appeal by the plaintiff:—
???.—That the mortgage money was not due until a ??? was made and that no demand was made until the 13th of September ???.
???—That if the money were, by the terms of the ??? payable is ??? the Limitation Act applicable to the case ??? be the Act of 1971, which allows a mortgagee sixty years ??? which to sue for foreclosure.
The respondents contend on the other hand: First—That ??? mortgage debt became payable at once. Secondly.—That the ??? became not only barred, but extinguished, by force of the Limitation Act of 1859, and was not revived upon the repeal of ??? Act by the Act of 1871.
Upon the first of these points I have had great doubt; ??? if the words “on demand” had been used only in the ??? for redemption, and in the covenant to pay the mortgage ??? I should have been disposed to hold that the debt became ??? at once. The money advanced prior to the mortgage is ??? ledged in the deed itself to be then due and payable; and fact, that compound interest was to go on accumulating upon sums advanced, seems quite inconsistent with their not being then due. One test, which was very properly relied upon by the respondent as showing that the money became due at once, was that, if it were not due, the mortgagor would have no right to come in and pay it, and that it could never have been intended by the parties that the mortgagee might go on for 10, 20 or 100 years, accumulating the debt upon compound interest, whilst the mortgagor had no right to pay it off, and so prevent any further accumulation. There is another test, also, which is to be found in the authorities, and which might be applicable here, if we only had to deal with the covenant to pay the mortgage money, viz., that where a man promises to pay a sum of money, & c., on demand, which it is his duty to pay, whether a demand be made or not, then the money becomes payable at once, and no demand is necessary before suing him for it; as, for instance, in the case of money lent, and money due for goods sold, or for work done. But where a promise is made in consideration of some collateral thing being done on demand, there the demand must be made before the promise can be enforced, as in the case of a promise by ??? to pay Rs. 100 to B, if A should go to Dacca, on demand, or if A should pay Rs. 200 to C upon demand. (See Bicks v. Trippet, ??? Wm. Saunders, 32; Carter v. Ring, 3 Camp., 549; Rumball v. ???, 10 Mod. Rep., 38; Chitty on Contracts, 1286, 3rd edition.)
Here, no doubt, the mortgagor's covenant was to pay money ???, or to be lent, which it was his duty to re-pay, and part of which was declared by the deed to have already become due and payable. But my difficulty in saying, that a demand was un-necessary, and that the plaintiff had a right without any demand ??? his remedies upon the mortgage, is this—that there a special provision, that on demand of the debt due he may ??? possession of the mortgaged property; which means, I ??? that he cannot take possession until demand. The demand of ??? money is (as regards that provision) a collateral act, which ??? the plaintiff has done, he is not entitled to take possession. ???, them the words “on demand” in that part of the deed are ???, and mean that no possession is to be taken until ??? made, it seems to me that they must mean the same the other parts of the deed, viz., in the covenant to pay, and in the proviso for redemption. It can hardly be that words have different meanings in different parts of the deed; or, that the mortgagee might enforce his remedy way without a demand of the money, but could not ??? another way.
It appears to me, therefore, that the only reasonable ??? to give to the deed is this: that, for certain purposes, to say, to secure the payment of interest to the mortgagee, allow the mortgagor at any time to pay off the debt, the ??? money was to be considered as due and payable; but ??? mortgagee was not at liberty to enforce any of his ??? he had demanded the money. That being so, the next ??? is, when was the demand made? The plaintiff says now, ??? demand was made until the 13th of September 1876, ??? before suit.
If he is right in this, of course he is in time. But I ??? that Mr. Bonnerjee's argument on this head is well ??? that we are Justified under the circumstances disclosed in ??? in presuming that a demand must have been made in or the year 1847. It appears from the evidence of Eshan ??? Ghosal, who is the plaintiff's brother, that in that year an ??? partition of the family property was in contemplation on that occasion it was arranged that a specified ??? should be given to the plaintiff in payment aud satisfaction debt due to him from Hurrish Chunder. Now, before it could been ascertained how much of the family property should ??? appropriated to payment of the debt, it is only reasonable ??? that the amount due must have been calculated, ??? the plaintiff must have made some demand or claim for that ??? Suppose, instead of so much land being appropriated to ??? of the debt, it had been arranged that a certain sum ??? stock should be sold out and so appropriated, surely, ??? long lapse of time, and under the peculiar circumstances ??? a case as this, it would only be reasonable to presume ??? amount of the debt had been calculated and a demand made, otherwise the precise sum of stock necessary for ??? could never have been ascertained. The plaintiff's ??? confirms this, so far as the arrangements to apportion part of the property is concerned; but he denies that any demand of the debt was made until the 13th of September 1876. But we must look at his evidence in this and other respects with some ???. He is interested, of course, in showing, on the one hand, ??? the existence of the debt was known in the family, and that ??? mentioned it to the defendant's mother-in-law in order to ??? his own delay and laches; but, on the other hand, with a ??? to limitation, it is his direct interest to say, that no actual demand was ever made. Every reasonable presumption, as I have said before, must be made against a man who brings a suit under such circumstances.
I think, therefore, that we must presume, from the facts proved, that a demand was made in the year 1847, and then comes the further question, whether, even in that case, the plaintiff's suit is ???. The Advocate-General argues that it is not, because the Limitation Act in force when the suit was brought was the Act of 1871; and by the 149th article of that Act, a suit for possession of a mortgaged property may be brought by the mortgagee within ??? years. But that article is very peculiarly worded. The ??? years is to be reckoned from the time when any part of the principal and interest due upon the mortgage has been paid. But, ???, as in this case, no part of the principal or interest has ??? paid, is there to be no limitation to such a suit? I confess, it were necessary for us in this case to put a construction upon ??? article, I should be much disposed to hold that it is application to those cases only where some part of the principal or interest ??? been paid; and that in other cases the ordinary twelve years' ??? would apply. In cases where any part payment could ???, the presumption that would arise from lapse of time which is the principle upon which all Limitation Acts are founded) ??? not arise, or, at any rate, it would not be nearly so strong ??? a case where no part payment had been made. And this ??? in some degree explain the extraordinary length of time ??? is allowed to a mortgagee under article 149. I am ??? disposed to think, that in a case of this kind where there has ??? no payment of any part of the mortgage debt or interest, plaintiff's remedy was barred at the end of twelve years from demand.
But it seems to me that, on the question of limitation, here concluded by authority. Mr. Phillips contends, that the Limitation Act of 1859, the plaintiff's remedy upon ??? was not only barred, but the debt itself ??? therefore, that although the Act of 1871 may have ??? Act of 1859, and may have given mortgagees sixty years of twelve to bring their suits, that Act would not in ??? revive the plaintiff's rights, inasmuch as the Act of 1859 only barred the remedy, but extinguished the debt. I ??? should have had some doubt as to the correctness of ???, but I find that it was so decided by my brother ??? and Mr. Justice Prinsep in the case of Krishna Mohun v. Okhilmonee Dossee, (I.L.R, 3 Cal., 335); and as my Markby adheres to that view, I consider that in the ??? we are bound by that decision. It has undoubtedly been ??? in the case of land, a twelve years' adverse possession ??? bars the remedy of the rightful owner, but extinguishes ??? and the 28th section of the Limitation Act of 1877 would to extend that doctrine to any property other than land. ??? think it very doubtful whether the same principle should to apply to debts. There are many cases where the ??? always been considered to have a lien for his debt ??? remedy for it by suit is barred; and the 60th section of ??? Act, which allows payments to be appropriated to ??? of debts barred by limitation, is perfectly ??? the supposition that the debt itself is extinguished by ??? of time. I observe that Mr. Justice Prinsep decided the case with some hesitation; and when an opportunity ??? should be glad that the point, which is undoubtedly one ??? general importance, should be considered by a Full Bench.
In the present case, being bound by the above ??? of opinion, for the above reasons, that the appeal ??? dismissed with costs.
Markby, J.:— The plaintiff in this case is one of the sons of ??? Ghosal, who died many years ago. The plaintiff and his ??? formed a Hindu joint-family. The plaintiff, shortly ??? ??? death, obtained letters of administration to his father's ???, against which there were considerable claims; and whilst he was in possession of the whole estate on behalf of himself and the other members of the family, he alleges that his bother Hurrish Chunder, in the year 1842, being much pressed by his own private creditors, executed a mortgage in the English form, whereby be conveyed to the plaintiff his one-sixth share of the family property to secure an advance of Rs. 3,700, and further advances up to Rs. 8,000, out of the plaintiff's private funds. No payment, either of principal or interest, has ever been made upon this loan, and the total amount now due thereon is the enormous sum of Rs. 3,10,000.
The present suit arose in this way:—One of the brothers, in 1871, ??? a suit for partition, the plaintiff being at that time ??? in possession of, and managing, the whole family estate. In order for partition was made, and commissioners were appointment. Whilst the commissioners were engaged in carrying out the ???, the plaintiff filed this suit to have it declared that the mortgage above stated was a valid one, and binding upon the ??? share to be allotted to the defendant under the partition as ??? daughter of Hurrish Chunder, who had died in 1851. The plaintiff also asks for a foreclosure, and for an injunction to ??? the defendant from taking possession of the one-sixth share ??? to her. Notwithstanding this suit, the commissioners ??? proceeded to a partition, the plaintiff has been ousted, and ??? defendant is now in possession of her one-sixth share. The ??? was dismissed in the Court below. The plaintiff has appealed. There is no doubt that the mortgage deed was executed by Hurrish Chunder, but the defendant contends, first, that there ??? never in reality any mortgage at all, and that the only object ??? which that deed was executed was to protect Hurrish Chunder's property from his creditors; secondly, that, even if the mortgage was a real transaction, all claim under it is barred by ???.
It is extremely difficult to determine satisfactorily the first of ??? question at this distance of time, but I confess I have ??? been able to convince myself that the mortgage was a ???. I am very unwilling to come to that conclusion as against the plaintiff, who belongs to a respectable ??? who has apparently behaved well and honestly in the ??? of the family property; but the evidence which given has not convinced me of the truth of the story him. Hurrish Chunder, at his death in 1851, was ??? his widow Omritomoye. She died in 1877, and was ??? by her daughter, the defendant. We are asked to ??? during the whole of this period, nothing was paid ??? principal or interest upon the debt due to the plaintiff; ??? no demand was ever made for it. During the whole of the income of Hurrish Chunder, and those who ??? was passing through the plaintiff's hands. One-sixth ??? the family property was worth Rs. 40,000, and for a ??? years the family property has been unencumbered. Why the plaintiff have forborne during all these years to ??? arrangement for paying off the debt, or at least for down the interest? Forbearance under such ??? nothing leas than cruelty to the widow and daughter of Chunder, who must inevitably be ruined if the debt was to on accumulating.
There are also other circumstances in this case which to me inconsistent with the existence of this claim. The plaintiff has an exactly similar claim against another brother, Chunder, which he is also now seeking to enforce in suit against Mohes's representatives. In regard to this mortgage, also, the same extraordinary reticence has been ???.
In 1859, a suit for partition was commenced by the ??? in the Supreme Court, which the plaintiff afterwards ??? be dismissed. No mention of either of these mortgage made in this suit, nor was any mention made of them suit of 1871, in which the partition took place, out ??? this suit arose. From a legal point of view, it was not ??? to mention these mortgages in those suits. But they in the ordinary course of things, have been mentioned had been real transactions, because a partition could carried out without very materially affecting the plaintiff under these mortgages. And with regard to Mohes's ??? the conduct of the plaintiff has been wholly ??? the existence of any such claim. Mohes became a lunatic, and his person and property were placed under the control of the Court. There was an inquiry in the presence of the plaintiff as to what property Mohes was possessed of, and what would be a proper sum to allow for his maintenance. Without the slightest objection on the plaintiff's behalf, Mohes was found to be entitled to one-sixth of the family property, and the allowance was fixed accordingly. This part of the evidence was not perhaps strictly admissible, but it is on the record, and it was commented on in the argument before us by both sides, without objection as to its admissibility, and I cannot therefore overlook it.
Another circumstance which weighs very much with me against the plaintiff is, that he produces no books. I believe it to be a thing almost unheard of amongst Hindus, for a person, ??? as the plaintiff was, not to keep books which would show ??? transaction along with his other transactions on his own ???. He had considerable property separate from the family property. He invested this money in various transactions; and when he says that he kept no books in which these transactions were entered, I am bound to say that I find the very greatest difficulty in believing him.
But even if I could persuade myself that this loan was really ???. I should still hold that the present suit was barred by limitation. Upon this point there has been much contention as to ??? the debt became due. This depends upon the construction ??? the mortgage deed. The mortgage deed begins with a recital, ??? the mortgagor “stands indebted” to the mortgagee in the ??? of Rs. 3,700, and then states an agreement by the mortgagee ??? lend to the mortgagor a further sum not exceeding in all Rs. 8,000. Then, in the operative part, the mortgagor, in ??? of the sum of Rs. 3,700 “now already due as aforesaid,” ??? the future advances, conveys his one-sixth share in the family ??? to the plaintiff. There is then a proviso, that if the mortgagor shall pay “on demand” to the mortgagee the said sum ??? Rs. 3,700, and interest at the rate of 12 per cent per annum, ??? shall also re-pay a “on demand” the further advances and such ??? as “shall or may appear to be due and owing” upon any ??? of account between the mortgagor and mortgagee, with interest for each and every such sum and sums of money and balance and balances of account respectively, at the rate of 12 per cent per annum from the respective times when such sums should be advanced or such balance be struck, with annual rests on the 30th of April in each year, then the conveyance is to be void. There is then a covenant to pay “on demand” the said sum of Rs. 3,700, and the interest, very much in the same terms as the clause of defeazance, and there is also a right of entry reserved to the mortgagee in default of payment “on demand.” There was at the same time executed a bond, and a warrant of attorney given to secure the same loan. The bond also recites the Rs. 3,700 to be due.
The plaintiffs now contend that no portion, either of principal or interest, was due until the 13th September 1876, when the mortgagee made a formal demand for Rs. 7,172-10-0 principal, being the amount of the original debt and the subsequent advances and interest at 12 per cent.
This seems to me to be rather a startling proposition. In the first place I don't quite see how, strictly speaking, a debt not due can carry interest and compound interest. Appropriate words might impose upon a debtor an obligation to pay a sum vastly greater than he had received, calculated in the same way as interest is calculated upon a debt overdue. But “interest” in its ordinary sense means something paid for money overdue, and prima facie, a debt which carries interest appears to import a debt already due (see Angell on Limitation, page 90). In the next place, the bond and the deed both state several times over that the Rs. 3,700, at any rate, was actually then due, and from time to time balances were to be struck of what was due and owing, ??? the plaintiff from time to time did (as he says) strike ??? balances in a book which he kept for the purpose, and calculated the rate accordingly. The words “on demand,” if taken to ??? that the debt and interest is not to be due until demand, ??? wholly inconsistent with the other parts of the deed. ??? these circumstances, it seems to me that, for the purposes ??? ascertaining when the debt became due, we ought to read in ??? mortgage deed and bond the words a “on demand” in the ??? way as they are always read in a promissory note, and not ??? postponing the date of payment. If we read them in the way in which the plaintiff desires to read them, the transaction would be a most unreasonable one. The mortgagor could not, according to the terms of the deed, so understood, redeem his property until the plaintiff chose to make his demand. Perhaps, a court of Equity would step in and compel the mortgagee to receive the money and return the property. But it is not likely that a Mortgagor would put himself in such a position. Of course, if he has done so, he must take the consequences. But I confess this is not how I should read the stipulations. Upon the language of this deed, construed as a whole, I think that the money advanced was due as soon as the advances were made and that the interest became due as it accrued.
But, even if a demand were necessary, and there was no debt due until the demand was made, still there are, as the Chief Justice has pointed out, very good grounds for inferring that a demand was in fact made. I need not repeat those reasons; it is sufficient to say, that I concur with the Chief Justices judgment upon this part of the case. This being so, there is no doubt that, as ??? as the Act XIV of 1859 was passed, the suit for foreclosure was barred. The utmost the plaintiff could have under that Act was twelve years from the date of the mortgage, if a demand was not necessary, and from the date of the demand of the debt only ??? become due. In either case, the suit for foreclosure was ??? by the operation of Act XIY of 1859, before Act IX of ??? came into force; and if the right to bring a suit for ??? was barred by the Act of 1859, it has been held that it ??? not be revived by the Act of 1871. These cases are ??? in Ind. L.R, 3 Cal., 331; Ind. L.R, 1 Cal. 328, and 13 ??? L.R, 445.
Moreover, even under the Act of 1871, I do not at present see ??? the plaintiff can get more than twelve years, from the date ??? the debt became due, to bring his suit for foreclosure. In my opinion, therefore, the suit for foreclosure is barred.
With regard to possession, even if we could treat the present a suit of that nature, it seems to me that the plaintiff must ??? fail. I agree with the learned Judge in the Court below, ??? the plaintiff was, until ousted by the proceedings on the partition, in possession as manager and not as mortgagee. ??? now seeks to get possession, not of the undivided share which was mortgaged to him, but of that which upon partition has been substituted for it. He has a right to do this, if the mortgage debt is still subsisting, but, in my opinion, his claim to that debt being barred, he has no longer any right to recover possession either of the mortgaged property or of what has been substituted for it.
The plaintiffs have relied upon clause 149 of the Act of 1871. As in my view of the matter, the plaintiff's right to possession was extinguished before that clause came into operation, I did not think that clause can, upon any construction of it, help him. But, even if it were otherwise, the sixty years spoken of in ??? clause is sixty years from the date when any part of the principal or interest was last paid on account of the mortgage debt. This would seem as if the clause only applied to transactions where something had been paid for principal or interest, and there ??? be a good reason for this; for where some part of the principal and interest has been paid, there is not likely to be any dispute as to the original transaction, of which the payment operates ??? an acknowledgment. For these reasons I agree that the ??? should be dismissed with costs.