1. The first defendant Ram Prasad executed the three mortgages in suit along with his elder brother Mohan Lal, who is now dead. The remaining three defendants are the sons of the first. In the first three of the five grounds of appeal it was contended that the letter dated 4, 9, 11 written by Mohan Lal (Exhibit P. 4) had not been proved, that it did not amount to an acknowledgment of the sort contemplated by section 19 of the Limitation Act, and that in any case it could attract the operation of that section only in respect of the writer himself and not in respect of his brother or his nephews. As the letter had been expressly admitted in the lower Court by the defendants and as its contents very decidedly bring within the terms of section 19 of She Limitation Act, the first two of these contentions were abandoned by the appellants. It is unnecessary to consider the third as the plaintiffs' suit in respect of all the three mortgage bounds is proved to be within time by endorsements on each of them made and signed by the first defendant Ram Prasad, who is father of the remaining three and Manager of the Joint Hindu family of which they are members.
2. The suit was filed on 18.12.19 The first mortgage (Exh. P. 1) is dated 24.8.02 and the consideration of Rs. 4,500 was payable on 24.8.06 On the deed there is an endorsement, written and signed by Ram Prasad on 6.8.18, to the effect that there had been a payment of Rs. 1,200/- on 2.6.03 and another of Rs. 700/- on 11.6.16 The period of limitation would have expired in the ordinary course on 24.8.18 The payment of 1903 could not extend it as it had not then begun to run, but if the second payment operates in this way the period is extended by it to 19.6.28 The endorsement itself was made within the original period. The second mortgage (Exhibit P. 2) executed on 4.8.04 for Rs. 951/- payable on 4.8.06 It bears two endorsements of payment written and signed by Ram Prasad, one dated 6.8.18 stating that there had been a payment of Rs. 900 on 11.8.07 and the other dated 11.2.19 stating that there had been a payment of Rs. 100 on that day. The date of the first of these two payments is given as Sawan Sudi 2nd 1962 and, 11.8.07 Now in the Sambat year 1962 there was no Sawan Sudi 2nd. The 1st and 3rd of the bright half of that year were 2.8.05 and 3.8.05 But Sawan Sudi 2nd 1964 corresponds to 11.8.07 The mistake was a natural one to make in 1918, and indeed the year of the English date of the payment was first written 18, and corrected to 7, so that it is beyond doubt that the date to which the endorsement refers is 11.8.07 In the ordinary course the period of limitation for this bond would expire on 4.8.18 Ram Prasad's endorsement was made two days later, and if the payments operate to extend the period the first does, so up to 11.8.19 and the second up to 11.2.31
3. The third bond for Rs. 2,510 (Exh. P. 3) is dated 25.7.06 and the consideration is payable on 25.7.07 It bears an endorsement of a payment of Rs. 500 made on 27.1.18 This was written and signed by Ram Prasad on 6.8.18, the date of that on Exhibit P. 1 and of the earlier of the two on Exhibit P. 2. The original period of limitation in this case expired on 25.7.19 The endorsement was made between eleven and twelve months before that, date, and the payment, if it is effective for this purpose, extends the period to 27.1.30
4. It seems clear that the suit is well within time in respect of all three bonds. It has been contended that a statement of a payment made in writing by the payer after the expiry of the original period of limitation is not such a statement as is contemplated by section 20 of the Limitation Act, even though the payment itself was made within that period. This contention can have reference only to the second of the three mortgages, but it is unsound. The written statement is merely evidence of the fact and date of the payment, and it is that fact of payment that extends the period and it is the date of payment from which it is extended. The proviso to the lection lays down that the fact and date, of payment can be taken as proved only by evidence of a certain kind, and so imposes a minimum degree of credibility in the evidence. A statement of payment in writing made, by the payer at some time after the payment is perhaps less trustworthy than one made on the same day, but even so it does not fall below the standard required by section 20 of the Limitation, Act. It cannot any more he brought below that standard by the fact that it was made after the expiry of the original period of limitation indeed that fact would tend to make it, more credible rather than less. That the fact of the written statement being made after the expiry of the original period of limitation does not affect the question is the view of the law on the point taken by the Madras High Court in Venkatasubbu v. Appusundram (1894) 17 Mad. 92, though no reasons were stated in the judgment for doing so. If therefore the payments were wholly or partly towards the principal amounts due on the mortgages, time is extended by reason of the endorsement to a date much later in each case than that on which the suit was filed. This is, equally true if the payments are taken as wholly or partly towards interest under the principles set out in Gopal v. Govind(2).
5. The only question remaining is whether it is proved, as against the three sons of Ram Prasad, that the whole of the consideration was received by their father and uncle, and whether so much of it as was received is a proper charge, on the shares, in the property belonging to them when the mortgages were executed. That Mohan Lal and Rain Prasad received the whole of the stated consideration is proved, as far as they themselves are concerned, by the written admissions made by them in the mortgage bonds and repeated by them at the time of registration. Their shares, amounting to five-eighths of the whole property are therefore liable for the whole of the mortgage debt. For the remaining three defendants, the sons of Ram Prasad, it is admitted that the whole of the consideration of the second mortgage amounting to Rs. 951 and Rs. 1,332 of that of the third mortgage were duly paid and proper-charge on their shares, the consideration of the first mortgage includes an item of Rs. 1,800 plus interest due to Govind Prasad. The mortgage to Lutudhar by Mohan Lal and Ram Prasad, bearing an endorsement of the payment of Rs. 2,294 on 21.9.02, a month rafter the execution of the first mortgage, is filed as Exhibit P6 and is proved by Lutudhar (P.W 7) Also Govind Prasad (P.W 9) proves the payment to him of Rs. 284 in satisfaction of the debt due to, him by both Mohan Lal and Ram Prasad. It is admitted that in these circumstances these two amounts are a proper charge on the shares of Ram Prasad's sons.
6. It appears then that a sum of at least Rs. 4,861 out of the total consideration of Rs. 7,950 of the three mortgages is a proper charge on the three-eighths share of the property belonging to the three sons of Ram Prasad. It would scarcely benefit them to be given an opportunity of redeeming three-eighths of the property for a sum which is very nearly five-eighths of that payable for the redemption of the whole, which is what a decree giving effect to these findings would come to, even if no more of the consideration of the first and last mortgages, is found to be binding on the shares of Ram Prasad's sons. It is therefore hardly necessary to examine the nature of the rest of the consideration of the first and last mortgages.
7. The matter may however be briefly stated. The rest of the consideration of the first mortgage is stated in the bond as follows:
Rs. 600-plus interest due to Lutudhar.
8. Rs. 550-plus interest due to Faujmal Marwari
9. Rs. 300-borrowed in Baisakh 1959, (which ended on 22.5.02) for a marriage.
10. Rs. 450-advanced on the date of the mortgage, for the payment of Land Revenue.
11. As to the first item Lutudhar (P.W 7) has no recollection of the debt, as he had none of the payments of the mortgage till he saw the mortgage bond, and Ram Prasad (D.W 1) in his deposition says “My tillage was mortgaged to Lutudhar. We never incurred oral loans, from Lutudhar. I am not aware if my brother borrowed Rs. 600 from him.” The man is of course lying as steadily as he has done all through the case, but the fact that what he does say is untrue does not prove that any one of the very many things he does not say is true. In addition to this there is the written admission made by both Ram Prasad and Mohan Lal in the mortgage bond. Mohan Lal's admission being receivable in evidence under section 32(3) of the Evidence Acts But all this cannot possibly be held to prove against the sons of Ram Prasad that the sum of Rs. 600 was actually received by their father and their uncle or that, if it was, it was used for paying off a debt they owed. The evidence in regard to the Rs. 550 stated in the bond to have been borrowed for payment to one Faujmal Marwari is weaker still. It consists of an admission by Ram Prasad that Mohan Lal was the Manager of the family and used to purchase cloth from Faujmal, and the statements of Ram Prasad and Mohan Lal in the mortgage bond. In respect of the last two items these statements in the mortgage bond are all there is. It must therefore be held that the receipt of these four sums of money has not been proved against the sons of Ram Prasad.
12. The consideration of the third mortgage is made up of two items. The first is a sum of Rs. 1,332 previously borrowed by Mohan Lal and Ram Prasad for payment of the costs of certain suits. The liability of Ram Prasad's sons for this sum is not disputed. The other item of Rs. 1,168 borrowed on the day of the execution of the mortgage “in order to maker payments ordered by the Court to the tenants of Jenjra in respect of damages to crops etc. and the costs of the suit” For the three sons of Ram Prasad it is admitted that the money he borrowed in order to carry on five litigation was, at the time of the mortgage, an antecedent debt of his for which, he was authorised to alienate their shares in the property, but at the same time it is contended that the debt of which payment was enforced of the decree was “tainted with immorality” as it arose out of a tort committed by their father. The two positions are entirely inconsistent; if there was any immorality about the incurring of the debt enforced in the decree there was exactly the same taint in respect of the money borrowed for the expenses of defending the suit in which that decree was passed.
13. It was however argued at some length that a Hindu Son is not bound to pay the damages decreed against his father for a tort. That may be so, but there is nothing to show that this decree was in respect of any act amounting to such immorality as would free the son of the wrong doer under the Hindu law from liability for the debt. All the evidence we have about it is a very vague statement by one Ratiram Sonar (P.W 10) that the money was required “for payment of a decree that some tenants had obtained, and the statement in the bond that, the decree was in respect of damages to crops etc. and costs.” There is nothing to show that there was any trespass and if there were any trespass it may well have been done in good faith and in the interests of the joint family and have merely failed of proof in Court.
14. It was finally argued on behalf of Ram Prasad's sons that according to the ruling of the Privy Council in Sahu Ram Chandra v. Bhup Singk (1917) 39 All 437 , 44 I.A 126 , 21 C.W.N 698 , 1 Pat. L.W 557 , 15 A.L.J 437 , 19 Bom. L.R 488 , 26 C.L.J 1 , 33 M.L.J 14 , (1917) M.W.N 439 , 22 M.L.T 22 , 6 L.W 213 , 39 I.C 280 (P.C) they are not liable for his debts while he is alive. The right to enforce payment of a Hindu's debts against his son is a different matter from that Hindu's right to alienate his son's share in the family property himself for the satisfaction of those debts. But anyhow it is too late to take that plea now; all through the case and even in the petition of appeal it has been admitted that the mortgages are valid and binding on Rain Prasad's sons for the amounts of any debts of the mortgages and the plaintiffs were not called upon to prove any other form of legal necessity for the borrowings. As has been already pointed Cut, there is a certain degree of futility in this appeal and the discussion of the portion of the consideration that is binding on the shares of Ram Prasad's sons. It was admitted at the beginning that a sum of Rs. 2283 was so binding, and that it is not quite Rs. 700 less than three eighths of the principal of the three mortgage. But further it was not seriously disputed that the two sums of Rs. 2294 and Rs. 284 out of the consideration of the first mortgage was so binding, giving a total of Rs. 4861, which is only Rs. 107-12-0 less than five-eighths of the total consideration of the three mortgages. By adding the Rs. 1168 which has been found to be a proper charge on the three-eighths share we get a total which exceeds three-quarters of the total mortgage money by Rs. 66-8-0.
15. There, seems to be no great advantage in being allowed to redeem three eighths of the property for six or even for five eighths of the sum for which the whole can be redeemed. This right may possibly however be of benefit to the defendants in some way and will be declared in the decree. The time for payment will be extended to the 24th of January 1923. A decree will therefore issue, in supersession of that of the lower Court, in the tern's of rule 2 of Order 34 of the CPC, allowing redemption by the defendants by the 24th of January 1923 either of the whole of the mortgaged property on payment of Rs. 7950 with interest up to that date and all the costs of the plaintiffs in both Courts or of a three eighths share in the mortgaged property of Payment of Rs. 6029 with interest up to the same date and three-eighths of the costs of the plaintiffs in both Courts minus five-eighths of the costs of the defendants in both Courts.