JUDGMENT
1. This appeal and the connected Appeal No. 942 of 1919 arise out of one suit. The appeals are by two sets of defendants. The facts which have given rise to these two appeals are briefly as follows: Ishri Prasad Rai was the owner of an eight-pie share in a certan village. He hypothecated the aforesaid share to Babu Udit Narain Rai under two hypothecation bonds of the 24th of June 1876 and the 2nd of July 1877, respectively. I,ateron, five pies out of. the hypothecated property were sold in execution, of a Revenue Court decree against the mortgagor and were purchased by his brother Dip Narain and his nephews, Chiranjit and Jaimangal, on- the 20th of March 1882. Ishri Prasad Rai died later on and his widow, Musammat Sona Kunwar, succeeded to a Hindu widow's interest in the property. It appears that on the 3rd of September 1890 Musammat Sona Kunwar made a gift of the whole of the eight-pies share to her daughter's son Mahabajrang Dat. Chiranjit and his brother, Jaimangal, who were two out of the three purchaseis of the five-pies share were own brothers and members of a joint Hindu family. Jaimangal died without leaving any issue and Chiranjit became the owner of his share also by right of survivorship. He sued fcr possession of a two-thirds of the property purchased at auction and obtained a decree against the donee Mahabajrang Dat on the 16th of March 1895. Babu Udit Narain, the mortagee, died and after his death a suit for sale was brought by his son, and later on, the son also having died during the pendency of the suit, his widow, Musammat Sheobarta Kuari, obtained a decree for sale on the two mortgages against Chiranjit, Dip Narain and Mahabajrang Dat on the 15th of December 1896. On the 20th of December 1902 in execution of this decree the mortgaged property was sold and was purchased by the father of the plaintiff and defendant No. 4 and he obtained possession on the 18th of October 1905. This is how the plaintiff claims a title in the property. On the 20th of November 1902 the defendants Nos. 1-3 purchased two-thirds of the five-pies share purchased by Chiranjit and Jaimangal in execution of a simple money-decree passed under Section 90 of the Transfer of Property Act. Defendant No. 4, whose father had purchased the whole of the eight-pies share mortgaged a portion of it consisting of specified plots to defendant No. 5. This is how the other defendants have been impleaded in the suit. The plaintiff says that the mortgage by defendant No. 4, who was a member of a joint Hindu family with the plaintiff, is unlawful and void as against the plaintiff. His further contention is that he, along with defendant No. 4, owned the property purchased by them in execution of the mortgage-decree and defendants Nos. 1 and 2 being purchasers in a simple money-decree have no right to withhold possession from them. It will be important to bear in mind that to the suit which terminated in the decree on 15th December 1896 Chiranjit was impleaded as a party after the death of Musammal Sona Kunwar, the widow of the mortgagor. He was, along with others, impleaded as a representative of Sona Kunwat and not as a purchaser of the mortgaged property.
2. The points raised by defendants Nos. 1-3 are, firstly, that they were not made parties to the suit as purchasers and hence they had no opportunity of redeeming the mortgage and they should now be given an opportunity to do so and the plaintiff's suit dismissed, and, secondly, that the plaintiff's suit is barred by limitation.
3. The First Court decreed the plaintiff's claim for possession of half of the property. On appeal by the two sets of defendants the lower Appellate Court has in the appeal by defendants Nos. 1-3 passed the following order, "I, therefore, modify the decree of the Court below by dismissing the suit for possession of half of three-pies 5 3/4 chataks share together with joint possession of the MV and khudkasht lands appertaining to this share." And in the appeal by defendant No. 4 he has passed a decree for possession of half of the lands entered in the mortgage-deed of the 5th of February 1917 on payment of Rs. 350 with interest at 6 per cent per annum from the 5th of February 1917 to the date of the payment. The plaintiff comes here in second appeal, and the first point taken in this appeal is that Chiranjit having been a party to the suit for sale in execution of which the plaintiff's predecessor-in-title purchased the property, the defendants, who represent Chiranjit, are now debarred from raising the plea that, as purchasers in execution of a simple money-decree, they have still got a right to redeem the property.
4. It is contended on behalf of the defendants in reply that they were made parties to that suit as heirs and legal representatives of the widow of Ishri Prasad Rai and could not have pleaded their own subsequent purchase,, having regard to the express provisions of Order XXII, Rule 4 of the Code of Civil Procedure.
5. In our opinion we do not see how the defendants have been prejudiced by this action of the mortgagee. The mortgage-decree certainly gave six month's time to the defendants-judgment-debtors for payment of the mortgage-money. If these defendants wanted to save their property they could have repaid, the money within the time allowed. They were parties to that decree and cannot now be heard to say that they had not an opportunity of redeeming this mortgage. They have no title as against the plaintiff. The second point taken in this appeal is that the suit is barred by limitation inasmuch as the plaintiff did not obtain actual possession of the property sold to him and reliance is placed on a Full Bench ruling of this Court in the case of Jang Bahadur Singh v. Hanwant Singh 63 Iad. Cas. 212 : 19 A.L.J. 469 : 43 A. 520 (F.B.).
6. In our opinion that ruling does not apply to a case like the present one in which the property is zemindari property and is let out to tenants for cultivation and is mot of a nature of which actual possession could be obtained by the purchaser as in the case of a house. We think the delivery of formal possession to the predecessor-in-title of the plaintiff gave a fresh starting point of limitation and the present suit is within time from that date and is not barred by limitation. So that, so far as the defendants Nos. 1-3 are concerned, there is no valid reason by the claim should have been dismissed against them.
7. Coming now to the Second Appeal No. 942 of 1919 by the plaintiff against defendant No. 5, namely, Nageshar Prasad, the main ground argued before us was that the defendant had failed to show that any part of the mortgage-money had been taken for legal necessity. On this question there is a distinct finding by the lower Appellate Court that defendant No. 4, the manager of the family, had need to borrow a sum of Rs. 350 for payment of revenue. This is a finding of fact behind which we cannot go. The result is, that the mortgage in favour of defendant No. 5 is binding on the family property to the extent of Rs. 350. The learned Judge of the Court below seems to have been under the misapprehension that this amount was to carry interest. It was a usufructuary mortgage and we do not see on what principle the learned Judge has thought fit to award interest at 6 per cent. per annum on the amount he has found to have been advanced for legal necessity. The question of interest was the second point raised in the appeal. We think that the decree of the lower Appellate Court, so far as it makes the payment of interest on Rs. 350 conditional to the plaintiff getting a decree for half of the mortgaged land entered in the deed of the 5th of February 1917, should be discharged.
8. An objection has been taken on behalf of defendant No. 4 that he ought to have been allowed Rs. 81 in addition to the amount of Rs. 350 allowed to him and also that the decree of the Court below is bad as regards costs. We think that the objection regarding Rs. 81 cannot be sustained. The finding is that Rs. 350 only represented the amount required for legal necessity and we cannot add Rs. 81 to it. As regards costs, having regard to the circumstances of the case and the way the parties have fought it out, we think it unnecessary to interfere with the discretion exercised by the Court below. The result is that we set aside the decree of the District Judge except as to costs and restore the decree of the Court of first instance with the modification that the decree for possession of half of the mortgaged property is to be subject to the payment of Rs. 350 by the plaintiff to defendant No. 5. So far as these appeals are concerned the parties will bear their own costs.