JUDGMENT
1. This is a plaintiff's appeal arising out of a snit for sale brought on the basis of a mortgage deed, dated the 21st of February 1893, purporting to hare been executed by two persons, Zanwar Husain and his mother, Musammat Sadar-un-nissa, in favour of the plaintiff-appellant, Pancham, According to the document Rs. 4,000 was the loan and it was secured on two classes of property. Firstly, pure Zemindari in Mauza Deoria and Chak Muhammad Panah, Perganah Jhusi, of the Allahabad District and 13 items of property which the mortgagors of held as mortgagees from other persons. Among these 13 items were two mortgages of property in Mauza Chintemanpar and Sidhaura. Oat of the sum of Rs. 4,000, Rs. 1,400 purported to have been paid in cash prior to the registration and Rs. 2,600 purported to have been left with the creditor for payment of certain debts due from the mortgagors to other persons. They were as follows:
Rs. 1,000 due to Nawaz Khan on account of his decree.
Rs. 700 due to Ilahi Bakhsh of Utraon.
Rs. 400 due to Mir Zahid Husain who held a mortgage of sir land in Mauza Deoria; and Rs. 500 to Lala Janki Prasad, Banker of the City of Allahabad,
2. According to the terms entered in the document the interest was to be Rs. 1 per cent. per mensem and the executants stipulated to re-pay the loan in 12 years. They further stipulated that they would pay annually a sum of Rs. 500 on account of principal and interest. The interest at Rs. 12 per cent. per mensem for one year amounted to Rs. 480, so that this sum allowed for the payment of the annual interest and a little over. They stipulated that the amount thus paid annually should be set off against the interest and the balance should be credited towards the principal. Further on in the document the mortgagors stipulated that if in any year they were unable to pay the interest, the interest might be treated as principal and would carry interest at the rate of Rs. 1 per cent. per mensem. Further on in the deed they further stipulated that if there was any default in payment of the Rs. 500 per annum, the mortgagee was to have power, without waiting for the expiry of the stipulated period, to set aside all the other stipulations embodied in the document and to bring a suit in Court to realise the entire principal together with interest and costs from the parsons of the mortgagors and from the hypotheacted property. Musammat Sadar-un-nissa and Zauwar Husain are both dead and the persons who are now sued are their heirs. They pleaded in defense that the deed had not been executed by Zauwar Husain and Musammat Sadar-un-nissa. They pleaded that no consideration had passed; and they lastly pleaded that the suit was barred by limitation. We may note here that it is an admitted fact that all the 13 items of mortgagee rights which were hypotheacted under the deed in suit have disappeared, that is, the original mortgagors have paid of the mortgages, but not to Pancham or any of the present plaintiffs. The plaintiffs have not made the original mortgagors of these properties parties to the present suit. The Court below has held that Rs. 3,000 out of the Rs. 4.000 entered in the deed as consideration was actually paid. It has further held that the deed was duly executed by Zauwar Husain and Musammat Sadar-un-nissa. It has held that the suit is barred by limitation.
3. The plaintiffs in their appeal urge:
That the Rs. 1,000 of consideration which the Court below has disallowed has been established. They further plead that the suit is not barred by limitation.
4. So far as the Rs. 1,000 of the consideration is concerned, the appeal has not been particularly strongly pressed. The learned Vakil for the appellants states that his clients will be quite satisfied if they can get a decree for Rs. 3,000 principal together with interest thereon by sale of the hypotheacted property. With regard to this item, therefore, we need not say mush, except that we agree with the Court below, that the appellants have failed to establish the payment of this item. It was a sum which they had to pay to the decree holder, Nawaz Khan. Excepting the bare statement of the plaintiff Pancham there is practically no evidence. No receipt has been produced, and the best evidence which was obtainable from the records of the Civil Court has not been put forward. We, therefore, agree with the Court below that the plaintiffs have failed to establish the payment of this Rs. 1,000.
5. We next come to the question of limitation. This may be divided into two heads. First of all it is pleaded that the plaintiffs had a period of 24 years within which to bring their suit on the basis of the bond. Next it is pleaded that even if they had not this lengthy period, still the plaintiffs have adduced evidence and have established the payment of some 10 sums of money on various dates on account of interest due under the deed and that these payments of interest have given the plaintiffs further time and the suit is, therefore, within 12 years of the last payment. The first portion of the plea is based upon the terms of the deed. The document is dated the 21st of February 1893. The period fixed for payment was 12 years, which would bring the time up to the 21st of February 1905, The suit 19 within 12 years of this date, it having been filed on the 21st of February 1917, that is, on the very last day of limitation. The Court below, however, has held, relying on the Fall Bench decision of this Court in Gaya Din v. Jhuman Lal 28 Ind. Cas. 910 : 37 A. 400 : 13 A.L.J. 510, that the suit ought to have been brought within 12 years of the 21st of February 1894,. It is an admitted fast that the sum of Rs. 500 which the mortgagors stipulated to pay annually was not paid at any time. The first sum of Rs. 500 was due on the 21st of February 1894. Admittedly it was not paid. Even the entries of the alleged payments on the back of the document do not begin before the 15th of December 1899. According to the terms of the deed the mortgagee was entitled to sue on the 21st of February 1894 by reason of the default. Article 132 of the Limitation Act clearly applies to the suit and that Article fixes a period of 12 years from the date on which the money became due. The lower Court has also held that excepting the one alleged payment of the 15th of December 1899, none of the other alleged payments of interest have been proved. It has, therefore, held that the suit is out of time. It is urged before us practically that we should not apply the ruling in Gaya Din v. Jhuman Lal 28 Ind. Cas. 910 : 37 A. 400 : 13 A.L.J. 510, because in the case of certain other suits to which Article 132 does "not" apply, this Court has in certain instances tome to a decision which in principle may clash with the principle laid down in the Full Bench ruling. We do not think that this is a good argument. The first question is, whether the circumstances of the two cases, that is of the reported case and the case before us, are identical or not, and whether the Full Bench ruling does as a matter of fact apply to the suit before us. We have compared the two cases and find it impossible to distinguish between them. In the present suit no option whatsoever was given to the mortgagee in the matter. The stipulation laid down (and the mortgagors agreed) that if they failed to pay the annual sum of Rs. 500, the mortgagee had a right to sue. On the face of this document now in suit the mortgage money became due on the 21st of February 1894 and time began to run. That time, in the absence of any payments on account of interest, came to an end at the end of 12 years and the present suit was brought, as we have already pointed out, at the end exactly of 24 years from the emotion of the document. It is true that the Madras High Court has, in a recent case, differed from the decision of this Court In doing so, it has had to go contrary to one of its own farmer decisions, whereas the Calcutta Might Court has consistently followed the opinion of this Court, or rather the decision in the Full Bench is based partly on the decisions of the Calcutta High Court, and we see no reason whatsoever not to follow the decision of this Court, which up to the present moment has not been upset and with which we agree. Unless, therefore, the plaintiffs are able to satisfy us that the alleged payments of interest entered on the back of the document were made, their suit is clearly barred by limitation, In regard to these payments, they are ten in number the earliest payments purport to have been endorsed on the deed in December 1899, Jane 1901 February 1902 and January 1903 The four sums mentioned in these four entries purport to have been paid by Zauwar Husain and the entries on the deed to have been made by Pancham. The next two entries are of January 1904 and December 1904 and purport to cover two sums of Rs. 700 and Rs. 300 sent by MusaLat Sadar-un-nissa through Mata Bhik one of her servants. The entries which are made in the Urdu character purport to have been made by Partap Dube. The 7th item is dated the 10th of April 1906 and purports to relate to a sum of Rs. 900 paid on that date by Musammat Sadar-un-nissa herself. The entry purports to have been made by Pancham Dube. The 8th and 9th items of Rs. 1,000 each dating in 1910 and 1911 also purport to have been paid by Sadar-un-nissa herself and both the entries are in the handwriting of or purport to be in the handwriting of Sheo Partap.
6. The last item of 11th August 1912 is a sum of Rs. 1,000 and the entry purports to have been made by one Jaswant Rai a servant of the plaintiffs. The Court below has pointed to the fact that the evidence of these payments consists only of the statements of Pancham and Sheo Partap. It has in the circumstances of the case reinsert to accept their evidence as sufficient proof. The lower Court clearly hesitated to believe there two men. In regard to the payment of the 15th of December 1899 the Court, however, has accepted their statements because of an entry in the deed, dated 16th of January 1900. That deed purports to be a sale-deed of a half share in this document as well as other documents by Pancham in favour of Kalka Prasad. There had been a partition apparently in the plaintiffs' family and their rights under certain deeds were distributed among them, and then there were transfers from one to the other of their shares. In this sale-deed there is an entry of the deed now in suit showing the value of the bond itself on the 31st of December 1899. According to the calculation made therein the interest shown as then due was really less than the full amount calculated according to the bond; therefore, it was pleaded on behalf of the plaintiffs that this shows that there must have been some payment of interest prior to the 31st of December 1899 and they point to the entry dated 15th of December 1899, which shows a payment of Rs. 353-8-0, and they say this, therefore, is corroborated by the entry in the sale-deed of the 16th of January 1910. The lower Court has more or less made a present of this item to the plaintiffs. We have been taken over the evidence of Pancham, Sheo Partap and Jaswant Rai and on a consideration of their evidence, we have come to the conclusion that all these entries of payments on the back of the deed are highly suspicious and that not even the entry of the 15th of December 1899 has been established to our satisfaction The appellants are people who on the face of the record have done in the past a considerable amount of money lending. Even their sale-deed of 16th January 1904 shows that. They have not produced in Court any books of account whatsoever to show that any of these payments were made. They have stated in Court that they kept no account books; that they every year prepared what they call a choubandi, which we presume consisted of papers stitched together and which they say they threw away and destroyed at the end of each year. Now the evidence shows that not only did they lend money but they also lent grain; they are described as Mahajans in Pancham's own deposition. He there gave his occupation as that of a Mahajan and Zemindar. Sheo Partap also described himself as a Mahajan. They are residents of Jhusi, which is a suburb of the town of Allahabad. We find it impossible to believe that they maintained no account books at all. Not a single receipt purports to have been given. No signature of any of the alleged payers has been taken. We are asked to accept the statements of Pancham and Sheo Partap as being simply true, unsupported practically by any other evidence. An examination of the back of the bond will show that the entries Nos. 1, 2, 3 and 4 are not in the position on that bond where one would naturally expect to find them. Beneath the registration endorsement there was a certain amount of open space. One would have thought that a person endorsing a payment on thin document would have naturally begun the first entry at the beginning of the open space, but we find that these four earlier payments are entered in cramped spaces in between the entries made by the Registration Officer and the stamp vendor on the back of the deed.
7. The next point which is worthy of notice is this: The plaintiffs would ask ns to believe that on the 10th of April 1908, Musammat Sadar-un-nissa herself paid the sum of Rs. 900 and that she made three further payments of Rs. 1,000 each on the 9th of November 1910, 20th of October 1911 and the 11th of August 1912. Now in 1906 on the plaintiffs' own showing the amount of their debt was Rs. 14,647-2-0. The value of the property could not have been more than this amount. The amount of the debt continued to swell up to Rs. 21,622 in 1910 when the Musammat is said to have paid Rs. 1,000 more; In 1911 it had swollen to Rs. 23,094 when another sum of Rs. 1,000 is said to have been paid, and in 1912 it had swollen to Rs. 24,745 when in August of that year another Rs. 1,000 is said to have been paid. The income of this property is said to be Rs. 500 to Rs. 600 per annum. The amount of the debt in 1910,1911 and 1912 was considerably more than the value of the property. It is difficult to believe that any mortgagor would in these circumstances have thrown Rs. 1,000 into the pocket of the plaintiffs without any object what soever. It made no appreciable reduction in the amount of the debt. The latter was far greater than the value of the property, and it would have been a hopeless payment which no sane person would have made. But there is another fast which goes to show that no such payment would, however, have been made by Musammat Sadar-un-nissa. On the 24th of May 1906, that is, a month and fourteen days after the alleged payment of Rs. 900 of the 10th of April 1906, the mortgagor of two portions of the mortgaged property, that is, the shared of Mauza Chintamanpur and Sidhaura, filed an application under Section 83 of the transfer of Property Act to which he made both Sadar-un-nissa and Pancham parties. He tendered the money due under his mortgage and made Pancham a party because, as he alleged, he had discovered the existence of the document of 21st of February 1893, under which the mortgagee purported to have sub-mortgaged her rights, and he had questioned Musammat Sadar-un-nissa who had denied the mortgage of the 21st of February 1893, and, therefore, to protect himself he made both Pancham and Sadar-un-nissa parties to his application and paid the money into Court. Notice in that case was issued to Pancham. It was not served upon him personally but was attached to the door of his house. On the 22nd of November 1906 Musammat Sadar-un-nissa filed a reply in that proceeding, in which she also stated that she had denied the execution and completion of the deed of the 21st of February 1893 and she claimed the money deposited by the mortgagor, Sahib Ali, as belonging to herself. Apparently Pancham took no farther steps in the matter and the money was withdrawn from Court by Musammat Sadar-un-nissa. It in, therefore, clear that so early as the beginning of the 10th of April 1905 Musammat sadar-un-nissa had publicly denied execution of the deed now in suit. We have pointed out above that the mortgage debt in that year was practically equal to the value of the property, if not greater and that in subsequent years it continued to increase till the payment of the debt was a hopeless one. We have also the admitted fact that all the mortgagee rights that were hypothecated to the present plaintiffs have been redeemed and the plaintiffs have not deemed it worth their while to make these mortgagors parties to the present suit. In these circumstances, we think that it would be dangerous in the extreme to place any reliance whatsoever on the evidence of Pancham, Sheo Partap or any of the plaintiffs' witnesses. We cannot and we do not believe that any of the payments endorsed on the document were ever made. They certainly have not been established to our satisfaction. In any view, it is clear that the suit was barred by limitation and was properly dismissed by the Court below. The appeal fails and we dismiss it with costs, including fees on the higher scale.