OL, V ] LAHOBE SERIES.

, 317,

APPELLATE CIVIL’.

Before Mv. Justice Broadway and Mr. Justice Campbell.

T H A K A R DAS, e t c . (D e f e n d a n t s )
WU
Appellants
mrsns March 24.
l i s t . PU TLI (P la in tiff) Respondent.
Civil Appeal No 3 85 of 1920.
Mortgage in favour of— whether enforceable b y
M in o r —
Mm— Joi7it Hindu family—Acknowledgment by head of
family— Whether binding on his co-’parceners.
'Held, tHa^ 'a mortg'a'ge ii£ 'faYOHr 'ol g minoT is SnforcS-!
.able by Iiiiii wKere tte consideration Kas Keen’ paifl Hiitt iiH
full.
'Raghava Chariar v. Srinivasa Magham Chariar (1), Munni
Kunwar v. Madan Gopal (2), Narain Das y . Mst. Dhania (3),
Ulfat Rai t . Gauri Shanltar (4), Bahal'iiddi'H v. Uafaqat JIusai^i
(5), and Steinherg y . Soala (Leeds) Ltd, (Q), follo'wed,
Mohori Sihee Y. Dharmodas Ghose (7), referred to.
Held further, tliat tiougli an actno-wledgmeiit of a time-
•barred debt by tbe bead of a joint Hindu family would only
l)ind Iiimself an acknowledgment of a debt mtbin time binds
aiot only bimseif but also the otber members of tbe joint Hindu;
family.
F irst a fp ea l from the decree o f J. K . W . T o f f ; Es-
'qtdre^ Senior Subordinate Judge^ Delhi^ dated the 3rd
ordering tM t ths defendants, esGceptme^
^do paf: to tfie 'plajimM ; :
Bheo: Mid' DALip SiNG^
T e k G hand and M ehr C h a n b , for R es-
; pendent.-
The jnHgment of the Conrt was ‘deliyered by—
Broadway J.— The suit out of which this appeal
'has arisen was instituted by MussartfimatVvXli, a minor,
m (1916) I. L. R. 40 JIad. 308 (p. B.). (4) (1911) I. L. R. 33 AH. 657.
(2) (1915) I. L. R. 38 All, 62. (5) (1913) 18 I. C. 451.
>■(3) (M S ) I. L. R. 38 11.154. (6) (1923) 92 L. J. R, 944 (K. B. D.s
(7) (1902) I. L. R. 30 Cal. 539 (P. C.).

b2
 318 INDIAN LAW REPORTS. V O L. T

1 924 acting through her husband, Sat Narain. She claim-

rp ed from the defendants a sum of Es., 5,127. Durins-
i HAKA.E D as , - „ , . _ ^
the pendency oi the suit she attained majority and, at
Mst. PuTu. her instance, her next friend was discharged and she^
was allowed to proceed with the suit in her own name.
The following pedigree-table will show the rela^-
tionsliip between the defendants :—
Tbalvur Das
^ -^ -------------------^
------------ ^
Sliambu Natli Kidar Natli Baij Natli
(adopted by Rami Mai)

r — ^
Cliaman Tii'look Am ar X atlt

One Ram Rachhpal was also made a defendant.

He is connected with Kidar Nath through Kidar Nath’ s-
adoptive father. The suit as against Earn Eachlipal
was dismissed as being barred by time. As against
the other defendants, the plaintiff’ s claim was decreed.
The trial Court, apparently through an oversight, did!
not allow interest from date of suit to date o f realisa­
tion, and refused to allow the plaintiff’ s costs.
Against this decree the defendants have preferred this;
appeal. Earn Eachhpal was made one o f the appel­
lants , although the suit as against him had been dis­
missed The plaintiff filed cross-objections through
Mr. Tek Chand, claiming interest from date o f insti­
tution of the suit till date of decree and costs.
The facts are given and discussed at great lengtli
ill the judgment of the trial Court, and it is only ne­
cessary to state them briefly here. It appears that in-
190'7 Kidar Nath was concerned in certain litigation
with one Natliu M , It became necessary for Kidarv
Nath to prefer an appeal to the Privy Council and h#
was called upon to deposit Es. 4,000 or security to that
extent in connection with that appeal. His natural
father Thakar Das was in the employ o f BM Mwr
TOL., Y LAHORE SERIES.. 819

XaZa Sri Kishen Das as his Head Clerk. He asked ^ 924

Mai Bahadur Lala Sri Kishen Das for assistance. I ll'
timatelyhe, KidarNatli, Sliambu Nath, Baij Nath and ■u.
Bam Eachhpal are said to have gone together to Rai Putii.
Bahadur Lala^Ti Kishen Das and asked him to arrange
^or this Rs, 4 0 0 0 . Out of consideration for his em­
ploye Bahadur Lala Sri Kishen Das agreed, and
it appears that a fixed deposit to the extent of 4,000
with the Allahabad Bank was tendered to the Chief
€onrt. The fixed deposit was refused and ultimately
Government Promissory Notes of the face value of
Us. 4,000 ^vere acquired and deposited with the Re­
gistrar of the Chief Court. Kidar Nath lost his ap-
peal in the Pri\y Council. In the meantime on the
'26th of September 1913 Eaz Bahadur Lala Sri Kishen
Das was adjudicated an insolvent by the High Court
of Bombay, and the official assignee took possession of
liis estate including all outstandings, ;The 0^ as-
'signee transferred the outstandings, including the pre-
:sent claim to one Chhabil Das, the necessary assign-
:ments being drawn up. Chhabil Das in his turn trans­
ferred the present claim to Mussaminat Putli, then a
minor, under a deed dated the 2nd of November 1917.
'On the basis of this assignment Mussammat Putli
sought to recover the amount.
The suit was filed on the 1st of Deeeinber 1^17.
I t has been shown that the debt sought to be recovered
was incurred on the 18th February 1907. The defen­
dants set up various pleasi one^of th^e being t fe t the
assignment to Chliabil Das by the official assignee was
invalid, and another being that the suit was barred
by limitation,, The plea of limitation rested on the
assertion by the defendants that the transaction sued
upon was not a loan made by Bahadur Lola Sri
Kishen Das, but was really one by which Rai Bahadur
'Lala Sri Kishen Das became a surety to the extent of
 320 INDIAN LAV/ REPORTS.- VOL. T

1&24 Es., .^,000 for Kidar Fatli'. It was contended therefore

that the claim really was by a surety against liis prin­
!f HAKAR Das .
cipal and was governed by Article 81 which provides
M s L PuTM. a limitation of three years. It was admitted by Mr.
iJ'ek Chand that if this plea of the defendants was
correct the suit was barred. He contended, however,
that the transaction was really a loan, and that there­
fore the suit was governed by the six years’ rule and
was within time owing to the payment of interest by
Kidar Nath and Thakar Das, the payment by Thakar
Das being binding on Shambu Nath and Baij Nath,
and further, that Thakar Das had admitted his liabi­
lity in two letters Exhibits P-1 and P~2, dated respec­
tively 22nd and 27th February 1913,,
Although’ Mr. Sheo Narain for the appellants de­
voted most of his time to an endeavour to show that
the transaction was really as alleged by the defendants,
at the conclusion of his address he advanced a conten­
tion which, if given effect to, would conclude the case
in his favour. This contention was that inasmuch as
Mussammat Putli was a minor on the 2nd of November
1917 when the assignment of the debt was executed by
Chhabil Das in her favour, the contract evidenced by
that assignment was void and could not be made the
basis of a suit. In support of his contention he re­
ferred to Mohori Bibee v. Dharmodas Ghose (1). On
the other hand, Mr. Tek Chand pointed out that this-
was an entirely new point, not raised in the written
statement, and urged that Mr. Sheo Narain should not
be allowed to take it at this late stage. He contended that
had this plea been advanced at the outset it could have
been proved that the negotiations had been carried out
on her behalf by her husband. He drew attention to Sat
Narain^s statement at page 55, line 80, to the effect
that he had acted for Jlfussammal Putli in the matter.
Cl) (1802) I. L R;30 Cal.: 539 tF. 0.}. ;'
VOL.. V ] LAHOEE SEPJES.. 321

He further contended that Mohori Bibee y , Dharmodas 1921;

Ghose (1) was distinguishabie as it dealt with ^ D a s
fer by a minor, that the suit which was decided bv their
Lordships o f the Judicial Committee was one between M s L P d tll
the parties to the contract, and that in that suit it was
sought to enforce an obligation entered into by a
minor. The question whether a minor could pur­
chase prox3erty and could enforce an obligation
entered into in his fayour was not before the
Privy Council. In RagJiava CliariaT v. Srinivasa
Raghma Cliariar (2) it was held by a Full Bench that
a mortgage in favour of a minor was enforceable by
the minor, and the view was also expressed that in the
same Avay a sale in favour of a minor could be enforced.
This viev/ is in consonance with Munni Kunwar v.
Madan G of cd (3), Narain Das v, Mst. Dhama (4),
Ulfat Rai v. Gmiri Shankar (5) m d Bc6haluddi7i y.
Rafaqat Ensain (6)^ In my opinion Mr. Tek Chand’s
contention is correct. The assignment was by Ghhabil
Bas in favour oi Miissa7nmat The considera­
tion for the assignment had been paid in full to the
assignor. The minor was therefore under no further
obligation to anyone, and I am unable to see any reason
why a minor in such circumstances is precluded from
suing on such a contract. I am supported in this view
■ h jS teM erg j . Scala (Leeds) v
Next, as to the nature o f this transaction the
plaintiff has produced the naql hahi, UMm and
Tohar of the firm of ZaZa Sri Kislien Bas v
The relevant entries have been proved by witnesses
against whose reliability nothing has really been urged.

(1) (1902) I. L. R. 30 Cal. 539 (P. G.) (4) (1915) I. L. R. 38 AIL 154.
(2) (1916) I. L : E> 40 Mad. 308 (F. B.). (5) (1911) I. L. R. 33 Ail. 857.
(3) (1915)1. L. R. 38 AU. 62. (6) (1913)181. G. 451.
(7) (1923) 92 L. J. R. 944 (K. D.).
 322 INDIAN LAW REPORTS. VOL. V

1924 'After a consideration of all the evidence on the re­

cord and the axgiiments advanced at the bar I have
T h a k a e Das
V. no hesitation in agreeing with the Court below and
M s L PUTLI. hold that the transaction was a loan.
It was admitted by Mr. Sheo Narain that in the
event of the transaction being found to be a loan, the
suit as against Thakar Das and Kidar Nath was within
limitation,, He, however, contended that any pay­
ment of interest or any acknowledgment made by
Thakar Oas could only be binding on him in order to
save limitation, and on his sons, as members o f a joint
Hindu family, only if the payments o f interest made
by him had been paid as such, within the meaning o f
section 20. A reference to the account books shows
•that at the outset the pajonents made amounted to the
interest due. The last payment was a little short of
the actual interest, the shortage being Ee. 1 odd.
Having regard to the previous nature of the payments
I am of opinion that all these payments of interest,
whether made by Thakar Das or through him, were
intended to be payments of as such within the
meaning of the section, and that therefore these pay­
ments bring the suit within limitation as against all
the appellants.
^Further I think Mr, Tek Chand’ s contention is
correct that Thakar Das could, as head of the joint
Hindu family, acknowledge the debt on behalf of the
joint Hindu family and did so acknowledge the debt
in his letters dated the 22nd February 1913 and the
27th February 1913, Exliibits P-1 and P-2. It is true
that while he could bind himself in an acknowledg-
ment of a time-barred debt, he could not bind his co­
parceners. When these letters were written however,:
having regard to the payments of interest already
made by him, the claim was within time, and these
letters therefore must be regarded as acknowledg-
TOL, V ] LAHORE SERIES. 823
ments binding not only on Thakar Das but on the other 19M
members o f the joint Hindu family o f which he was
the head. In this view of the case the appeal fails
•and is dismissed with costs. Putm^
Turning to the cross-objections^ no real reason
has been assigned by the Court below for disallowing
■costs. The defendants certainly are not entitled to
any sj^npathy. The interest claimed is- from the date
o f institution till the date of decree. Such interest is
usually allowed, and the omission to do so in this case
appears to be due to an oversight. I would therefore
accept' the cross-objections and modify the decree o f
the Court below by adding to it interest from date o f
institution to date of decree and allow the plaintiff her
■costs in the Court below.

C ampbell J.— I agree.

...

A'ppeal dismissed..
Cross-objection accepted..