The Judgment of the Court was as, follows:—
This appeal arises out of a suit brought by the Plaintiff-Respondent, against the Defendants-Appellants to enforce a mortgage bond said to have been executed by their father. The defence was limitation, denial of the bond, denial of liability on this ground that the Defendants being governed by the Mitakshara law were not bound by the mortgage-bond executed by their father, without their consent, and denial of liability for Interest on the ground that no Interest was recoverable after due date.
The first Court held that the bond was not genuine, and that the liability of the Defendants was not made out, and it accordingly dismissed the Suit. On appeal by the Plaintiffs the lower Appellate Court has reversed the decision of the first Court and given the Plaintiff a decree.
In second appeal it is contended for the Defendants-Appellants that the decision of the lower Appellate Court is wrong in law, first, because the claim is barred by limitation; secondly, because the mortgage-bond not being properly attested is invalid in law; and, thirdly, because the claim for interest in excess of the principal is Invalid under the Hindu law.
Upon the first point, it is argued that the mortgage-bond is not valid, it having been executed by the father of a Mitak-shara family without the consent of his sons, the Defendants; and that the liability of the Defendants to pay the debts of their father is extinguished by the lapse of time, the suit having been brought more than six years after the accrual of such liability; and in support of this argument the case of Luchman Dass v. Giridhur Chowdhry and Ramayya v. Venkataratnam , and art. 120, sch. II of the Limitation Act are referred to.
If the mortgage was invalid and not binding on the Defendants, there would be much force in the Appellant's contention that the claim was barred. But we fire of opinion that the mortgage by the father hi this case was Valid and binding on the sons, and that the cases cited for the Appellant are clearly distinguishable from the present.
In Luchmun Das v. Giridhur Chowdhry , the mortgage was not for an antecedent debt and in Ramayya v. Venkataratnam though the claim arose out of mortgage, the mortgagee was content with only a money decree in the first instance against some of the sons of the mortgagor, and the subsequent suit which was held to be barred by limitation was, as the judgment of the High Court shews, “not a suit to enforce the original mortgage which” had “merged in the money decree in original suit No. 5 of 1877, nor was it a suit to enforce the decree in that suit which” could “only operate inter partes.” In the present case, the suit is to enforce the mortgage; the mortgage was effected mainly to discharge an antecedent debt, only a small part of the consideration being received in cash, and not being shown to have been for any Immoral purpose; and the sors were, as appears from the admission of one of the Defendants, minors at the time. The case, therefore, comes within the provision of the Mitakshara (ch. I, sec. 1, para. 29) which says, “while sons and grandsons are minors and incapable of giving their consent to a gift and the like, or while brothers are so and continue unseparated, even one person who is capable may conclude a gift hypo the cation, or sale of immoveable property, if a calamity affecting the whole family require it, or the support of the family render it necessary, or indispensable duties, such as obsequies of the father or the like, make it unavoidable—” it being an indispensable duty of the sons to pay off the debts of the father not shown to have been incurred for immoral purposes. This view is fully supported by the case of Girdharee Lal v. Kantoo Lal and Suraj Bunsi Koer v. Sheo Persad Singh and also by Laljee Sahoy v. Fakeer Chand and Khalil-ul-Rahman v. Gobind . In which the case of Luchmun Dass v. Giridhur Ghowdhry cited for the Appellants has been considered and explained.
The mortgage being valid and binding on the Defendants, and the suit being to enforce that mortgage, it is governed by article 132 of schedule II of the limitation Act, and is not barred by limitation.
In support of the second contention, which was not raised in either of the Courts below, it is argued that as the only attesting witness examined is a marksman, the bond is not legally established, as required by sec. 59 of the Transfer of Property Act and by sec. 68 of the Evidence Act, which read with sec. 69 shows that an attesting witness must be one who can sign his name.
We are of opinion that this contention is not correct, and that there is no good reason for holding that a marksman cannot be an attesting witness within the meaning of sec. 59 of the Tranfer of Property Act and sec. 68 of the Evidence Act. According to the general policy of our law, a signature includes a mark—See the General Clauses Acts of 1887 and 1897 (Act I of 1887, sec. 3, clause 12, and Act X of 1897, sec. 3, clause 52), Act XIV of 1882, sec. 2 and Act III of 1877, sec. 3, and there is no reason why the case of a mortgage deed should form an exception. It was argued that marks-men in this country often only touch the pen, and even the mark, generally a cross, is not made by them, but is made by the writer of the deed. In this case, however, no question arises as to whether a mark made by a person other than the witness can be sufficient, the mark being shown to have been made by the witness himself.
In support of the third contention, which is raised for the first time at the hearing before us, the learned vakil for the Appellants argues that as the son's liability under the father's mortgage is based on the ground that by the Hindu law it is the pious duty of the son to discharge the father's debt, and as the Hindu law (Mitakshara, commentary on Yajnavalkya, II, 39 and 50) Colebrook's Digest Book I, Ch. II, sec. 3, 59, 61 does not authorize the taking of interest exceeding the principal in amount, the liability of the Defendants for interest must he limited accordingly.
We are unable to accept this contention as correct. The liability of the sons to discharge the father's debt no doubt depends upon the Hindu law; but the question what is the amount of the father's debt must be determined with referenoe to the law of the land for the time being. Now the Hindu law regulating the rate of Interest is not applicable to the mofussll; See Deen Doyal Poramanick v. Koylas Chunder ; and there is no question that the interest claimed is recoverable under the law obtaining in these provinces. That being so, we do not think that the liability of the Defendants can be limited in the manner contended for. The view we take is in accordance with that taken by the Allahabad High Court in Luchman Dus v. Khunnu Lal , upon a somewhat analogous question.
The grounds urged before us, therefore, all fall; and this appeal must consequently be dismissed with costs.
Appeal dismissed.