Indu Bala Debya v. Monimala Devi — 1955 DIGILAW 62 (PAT)

Judgment Choudhary, J. 1. This appeal by defendant 4 is directed against the judgment and the decree of the learned Subordinate Judge of Dhanbad decreeing the suit of the plaintiff. 2. The only point raised before us in this appeal is one of limitation. In order to appreciate this point it would be necessary to give a concise statement of facts leading to the institution of the suit out of which this appeal arises. Rajkumar Thakur Ranbahadur Singh of Ram-nagar Garh in the district of Manbhum, hereinafter to be referred to as the mortgagor, was the proprietor of the Barora Estate bearing tauzi No. 16 of collectorate and district Manbhum known as third Kismet of pergana Nawagarh which included amongst other properties 5 annas milkiat share in mauza Bansjora, eight annas milkiat share in mauza Simatanr and certain milkiat interest in mauza Bahaldih otherwise known as Bahiardih. He had leased out 200 bighas of coal lands in mauza Behaldih with certain lessees from whom he was receiving annually a sum of Rs 2,000 as royalty payable in two kists of Rs. 1,000 each, one in Aswin and the other in Chaitra. On 14-6-1922, he took a loan of Rs 5 500 from one Rabindra Nath Chakravarty, defendant 16, on the basis of a mortgage bond, Ex. 1. On 27-8-1922, he took another loan of Rs. 5,500 from Sashindra Nath Chakravarty, defendant 17, and Indranath Chakravarty, whose heirs are defendants 18 to 21, on the basis of another mortgage bond, Ex. l(a). In both these mortgage bonds he mortgaged his entire milkiat interest in mauzas Bansjora and Simatanr. The due date of payment under both the mortgage bonds was 14-4-1925. On 17-5-1927, Mahendra Nath Rai, the husband of the appellant, purchased the entire milkiat interest of the mortgagor in mauza Bansjora in execution of a money decree. He got his name mutated in the Land Registration Department and on his death the name of the appellant was mutated in his place. On 2-10-1927, the mortgagor sold his entire interest in mauza Simatanr to one Puspa Moyee Dasi, defendant 11. At the trial it was contended on behalf of the plaintiff that the sale deed executed in her favour was a fraudulent and collusive transaction. The learned Subordinate Judge, however, did not accept this contention, and held that it was not collusive and fraudulent. At the trial it was contended on behalf of the plaintiff that the sale deed executed in her favour was a fraudulent and collusive transaction. The learned Subordinate Judge, however, did not accept this contention, and held that it was not collusive and fraudulent. This finding has not been challenged before us by Mr. Sinha appearing for the plaintift-res-pondent. On the 31st of Sraban, 1341 B. Section, corresponding to 16-8-1934, the mortgagor made payment of Rs. 100 towards the dues of the second mortgage bond, Ex. Ha), and made an endorsement oi payment on the back of that bond, Ex. 1 (c). Similarly on, the 18th of Chaitra, 1343 B. Section, corresponding to 1-4-1937, he made payment of Rs. 600 towards interest payable under the first mortgage bond, Ex. 1, and made an endorsement of payment on its back, Ex. Kb). On 18-6-1946, by two deeds of assignment, Exs. 5 and 5(a), the plaintiff acquired the right, title and interest of the mortgagees of the aforesaid two mortgage bonds. He thereafter filed the present suit on 12-7-1946, for realisation of the mortgage dues under both the mortgage bonds by sale of the mortgaged properties. 3. According _to the case of the plaintiff, as disclosed in the plaint, the property described in Sch. A, namely, the mortgagors interest in mauzas Bansjora and Simatanr, was mortgaged or hypothecated for the principal and interest of both the mortgages and the mortgagor also gave the mortgagees a right to realise royalties from the lessees of 200 bighas of coal lands in village Bahaldih, referred to above, for the satisfaction of the interest on the aforesaid principal amount. Her further case is that the Aswin kist of the said royalties was hypothecated in the first mortgage and the Chaitra kist in the second mortgage. She claimed to save limitation on the ground of the two payments of Rs. 100 and Rs. 600 referred to above. In this suit she impleaded as many as twentyone defendants describing defendants 1 to 15 as principal defendants and defendants 16 to 21 as pro forma defendants. The pro forma defendants are the assignors of the mortgage bonds in question and they, by their two separate written statements supported the claim of the plaintiff. 600 referred to above. In this suit she impleaded as many as twentyone defendants describing defendants 1 to 15 as principal defendants and defendants 16 to 21 as pro forma defendants. The pro forma defendants are the assignors of the mortgage bonds in question and they, by their two separate written statements supported the claim of the plaintiff. The other defendants are the heir and other relations of the mortgagor, since1 deceased, the subsequent purchasers of the mortgaged properties and several other persons who, .according to the plaintiff, claim under certain collusive transactions, to have some interest in them. All of them, except defendants 2, 11 and 15, contested the suit. They filed seven sets of written statement and took various pleas to defeat the claim of. the plaintiff, one of which, with which aione we arc concerned in the present appeal, was that the suit was barred by limitation. All these pleas were overruled by the learned Subordinate Judge. He, therefore, decreed the suit in favour of the plaintiff. Against that decree the defendant 4, whose husband had purchased village Bansjora in execution of the money decree as stated above, has come up in appeal to this Court. 4. The suit for enforcing the two mortgages has undoubtedly been iiled beyond twelve years of the due date of payment and it is apparently barred by time. The plaintiff, according to her averments in the plaint, sought to avoid the bar of limitation on the ground of the payments of the dues under both the bonds referred to above. At the trial she put forward another ground for avoiding the bar of limitation. It was contended on her behalf that mauKa Bahiardih was given in usufructuary mortgage to the mortgagees under both the mortgage bondg, that this mauza Bahiardih was sold in execution of a decree and the auction-purchaser took possession over the same through court in 1937, and that the cause of action for the suit arose after the plaintiff was dispossessed from this, mauza. The learned Subordinate Judge rejected the contention of the plaintiff that the payment of Rs. 600 towards the dues of the first mortgage saved the limitation. The learned Subordinate Judge rejected the contention of the plaintiff that the payment of Rs. 600 towards the dues of the first mortgage saved the limitation. He held that on the date this payment was made the mortgagor had no interest left in any of the mortgaged properties and therefore, the payment of interest by him could not save limitation under Sec.20, Indian Limitation Act. He, however, held that the claim on the basis of tills mortgage was saved from the bar of limitation as it was made within twelve years from the date of plaintiffs dispossession from Bahiardih, With respect to the second mortgage, toe learned Subordinate Judge held that the limitation was saved both under Sec.20, Indian Limita-tion Act as the payment was made by the mortgagor at a time when he had his interest subsisting in mauza Bahiardih, as well as on the ground that the suit was brought within twelve years from the date of the dispossession of the plaintiff from that Mauza. 5. Mr. B. C. De, appearing for the appellant, has not challenged any of the findings of the learned Subordinate Judge except his finding on the question of limitation. His contention is that the suit of the plaintiff was barred by limitation and the payments of Rs. 100 and Rs. 600 referred to above could not save the limitation under Sec.20, Indian Limitation Act as they were made by the mortgagor after he had lost his interest In the mortgaged properties. His further contention is that the period of limitation could not be counted from the date of the delivery of possession to the auction-pur-chaser over mauza Bahiardih inasmuch as, firstly, the plaintiff never based his cause of action on dispossession, and, secondly, mauza Bahiardih was not even mortgaged under any of the two mortgage bonds. 6. I will first deal with the point relating to dispossession of the plaintiff from maussa Bahiardih. The court below has found that this mauza was sold in execution of a decree on 18-1-1937, and the auction-purchaser obtained possession over the same on 7-4-1937. This fining has not been challenged before us. Rather, both the parties have conceded that the mortgagor lost the interest in mauza Bahiardih by reason of the auction, sale and delivery of possession in 1937. Mr. This fining has not been challenged before us. Rather, both the parties have conceded that the mortgagor lost the interest in mauza Bahiardih by reason of the auction, sale and delivery of possession in 1937. Mr. B. C. De, however, has contended that the plaintiff did not base his cause of action to the plaint on the dispossession of the mortgagees from village Bahiardih. The only ground that was taken by him to save the bar of limitation was the payments of the mortgage dues referred to above. The argument of Mr. B. C. De is that, in that view of the matter, the learned Subordinate Judge was not justified in allowing him to put forward at the trial a new ground to save the bar of limitation, namely, the ground of the mortgagees dispossession from mauza Bahiardih. He has submitted that if the plaintiff had taken this ground in his plaint, the appellant would have adduced evidence and brought materials on the record to show that the mortgagees had lost their possession long before the statutory period of limitation. Since, however, the parties were never at issue on this point, the appellant could have no occasion and opportunity to bring on the record necessary materials to meet it. In my opinion, there is much substance in this contention. The learned Subordinate Judge should-not have allowed the plaintiff to base-his claim on a ground not put forward in his pleading. Mr. B. C. De has further contended that even if the plaintiff could be permitted to take this plea for the first time at the trial, he cannot escape the bar of limitation because Bahiardih was not mortgaged to the mortgagees under the two mortgage bonds. His furthercontention is that even if Bahiardih be held to have been mortgaged ,under the bonds in question, it was never given in usufructuary mortgage to the mortgagees, and, as such, dispossession of the mortgagees from Bahiardih could not give rise to a cause of action for the claim put forward by the plaintiff. The contentions seem to be well founded. I will deal with the question whether Bahiardih was mortgaged under the two bonds or not later on. Assuming for the moment that this mauza was one of the mortgaged properties, it has to be examined if it was ever given in usufructuary mortgage to the mortgagees. 7. Mr. The contentions seem to be well founded. I will deal with the question whether Bahiardih was mortgaged under the two bonds or not later on. Assuming for the moment that this mauza was one of the mortgaged properties, it has to be examined if it was ever given in usufructuary mortgage to the mortgagees. 7. Mr. Sinha appearing for the plaintiff-respondent has contended that this mauza Bahiardih was actually given in usufructuary mortgage to the mortgagee under the two bonds. He has placed reliance on paragraph 5 of the first mortgage bond, Ex. 1, which runs as follows: "That in fact it will be impossible for me to pay you the interest for the said amount at the end of every year or in each month. Hence I proposed to you that, according to my assignment and direction, the tenants of the coal field specified in Sch. (ka) with whom I have settled coal mines within my zamindari, shall from the year 1329 B. Section continue to pay to you in lieu of me Rs. 1,000 on account of the kist for Asvin to Bai-sakh out of the rents, minimum royalty and commission due to me according to the terms of the Patta towards the amount of Interest due to you annually as per contract and should such a system be worked the interest payable to you shall be systematically paid every year .............." Schedule ka mentioned in this paragraph contains the names of certain tenants of mauza Bahiardih alias Bahaldih with whom 200 bighas of coal lands in that mauza were settled by the mortgagor on an annual rental of Rs. 2,000 out of which the rent amounting to Rs. 1,000 as kist from Asvin to Baisakh was given to the mortgagees for the systematic payment of the interest. Mr. Sinha has, therefore, contended ttiat mauza Bahiardih was thus given in usufructuary mortgage to the mortgagees. I am unable to agree with this contention. In my opinion, the royalty amounting to Rs. 1,000 of the Asvin kist realisable from certain lessees was allowed to be taken by the mortgagees by way of mutual arrangement for the systematic payment of the interest, and not by way of usufructuary mortgage. I am unable to agree with this contention. In my opinion, the royalty amounting to Rs. 1,000 of the Asvin kist realisable from certain lessees was allowed to be taken by the mortgagees by way of mutual arrangement for the systematic payment of the interest, and not by way of usufructuary mortgage. The position is made perfectly clear in para 9 of the document which runs as follows : "That should the tenants under assignment not pay to you amicably the full amount of interest assigned to you every year with the aforesaid kists, or should they not pay with interest the defaulting kist within the month of Chaitra by tlie end of the year according to the terms of the kabuliyat, you shall please intimate it to me per registered post at the above address. I shall then myself pay the stipulated annual interest of Rs. 1,000 or the amount of interest in arrear within one month of the receipt of notice......" The two paragraphs read together make it perfectly clear that the mortgagees were not entitled to retain possession over schedule ka properties till the payment of the mortgage-money. It was only for the sake of convenience and systematic payment of the interest that the mortgagees were given a right to realise the royalties mentioned above towards the interest of the principal money with a clear stipulation that if the mortgagees failed to realise the same the mortgagor was liable to pay the amount of interest to the mortgagees. The mortgagees do not seem to have been given any right to enforce the payment from the lessees of the coal mines if they failed to pay and their only remedy under the agreement was to cat! upon the mortgagor to pay the unrealised amount. It may be noted that the terms of the other mortgage bond, Ex. 1(a), with regard to this point are almost similar, except with this difference that schedule ka of that bond contains the remaining amount of royalties of Rs. 1,000 payable to the mortgagor in Chaitra kist and that whereas in the first mortgage bond the said amount of Rs. 1,000 was given as jat and assignment, in the second mortgage bond the amount of Rs. 1,000 was given in usufruct. The difference is of no importance. 1,000 payable to the mortgagor in Chaitra kist and that whereas in the first mortgage bond the said amount of Rs. 1,000 was given as jat and assignment, in the second mortgage bond the amount of Rs. 1,000 was given in usufruct. The difference is of no importance. It may also be noted that each of the two bonds has got a recital in its very opening line that this usufructuary mortgage bond is executed to the following effect. Mr. Sinha, however, has conceded that the bonds could not be said to be usufructuary mortgages simply on account of this recital if from the terms of the bonds it appears that they could not, by any stretch of imagination, be said to be usufructuary mortgages. 8. Usufructuary mortgage is defined in Sec. 58 Cd), Transfer of Property Act as follows : "Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee." The section itself makes it perfectly clear that in order to create an usufructuary mortgage, the mortgagor must authorise the mortgagee to retain possession of the mortgaged property until payment of the mortgage-money. This is one of the essential ingredients of usufructuary mortgage and if from the terms of the bonds it does not appear that the mortgagee had any authority to retain possession until payment of the mortgage-money, the mortgage cannot be an usufructuary mortgage. Dr. Ghose in his Law on Mortgage in India, Vol. I, p. 88 (5th Edn.) says that the right to retain possession until the debt is paid is the essence of an usufructuary mortgage as defined in the Act. Dr. Ghose in his Law on Mortgage in India, Vol. I, p. 88 (5th Edn.) says that the right to retain possession until the debt is paid is the essence of an usufructuary mortgage as defined in the Act. At p. 543 of the same book the learned author says: "In the case of an usufructuary mortgage where the agreement between the parties is that the rent shall be taken in lieu of interest, it would seem that the mortgagee is bound to take possession on pain of forfeiting all claim to interest." Prom the terms of the mortgage bonds as quoted above it is clear beyond any doubt that the mortgagees were riot permitted to retain possession over Bahiardih until the payment of the mortgage-money; nor were they to forfeit the interest if they iailed to take possession of the same. In that view of the matter, the two bonds could not be said to be usufructuary mortgages. The view that I have f^ken gains support from a Bench decision of this Court in Chhathi Lal V/s. Bindeshwari Prasad , AIR 1929 Pat. 605 (A) in which it was held that where a Zarpeshgi deed is executed for a term of years- and does not authorise the mortgagee to retain possession until repayment of the mortgage-money, it is not a usufructuary mortgage as defined in Sec. 58 (d), Transfer of Property Act. Kulwant Sahay J. who delivered the judgment, Macpherson J. agreeing, observed as follows ; "The essential condition is that the mortgagee is authorised to retain possession of the mortgaged property until payment of the mortgage-money. In the bond in suit no such authority is given to the mortgagee... Kulwant Sahay J. who delivered the judgment, Macpherson J. agreeing, observed as follows ; "The essential condition is that the mortgagee is authorised to retain possession of the mortgaged property until payment of the mortgage-money. In the bond in suit no such authority is given to the mortgagee... .It is thus clear that the bond in suit cannot 6e treated as a usufructuary mortgage .........." In - Yash-vant Narayan V/s. Vithal Divakar, 21 Bom 267 B), a Bench of the Bombay High Court held as follows : "Where a mortgage provides that possession of the mortgaged property, if taken by the mortgagee, is only to be taken for securing due payment of the interest, the mortgagee paying the balance (if any) of the profits to the mortgagor, the mortgage is not a usufructuary mortgage, but a simple mortgage, and is governed by the general law applicable to mortgages of this nature." It is thus beyond any controversy that on the terms of the bonds in question they could never be characterised as usufructuary mortgages and it must be held that Bahiardih was not given in usufructuary mortgage to the mortgagees. As such, dispossession of the mortgagees from this village could not give rise to a cause of action for enforcing the mortgages. The finding of the learned Subordinate Judge that the limitation was saved as the suit was brought within twelve years from dispossession has, therefore, to be set aside and the suit must be held to be barred by limitation if it could not be saved under Section 20, Limitation Act. 9. The court below has held that the mortgagor made payments of Rs. 600 towards interest payable under the first mortgage bond, Ex. 1, on 1-4-1937, and of Rs. 100 towards the dues of the second mortgage bond, Ex. Ha), on 16-8-1934, and endorsements of payments were made on the two bonds in the writing of the mortgagor. This finding has not been challenged before us. Limitation is sought to be saved on the pround of these two payments under Sec.20, Indian Limitation Act. 100 towards the dues of the second mortgage bond, Ex. Ha), on 16-8-1934, and endorsements of payments were made on the two bonds in the writing of the mortgagor. This finding has not been challenged before us. Limitation is sought to be saved on the pround of these two payments under Sec.20, Indian Limitation Act. This section provides that where payment on account of a debt is made before the expiration of the prescribed period by the person liable to pay it, or by his duly authorised agent, a fresh period of limitation has to be computed from the time when the payment was made if an acknowledgment of the payment appears in the handwriting of, or, in a writing signed by, the person making the payment. In this case, the two payments were "undoubtedly made before the expiration of the prescribed period, and acknowledgment of the payments appeared in the writing of the mortgagor. The only question is whether the payments were made by a person liable to pay the debt. One of the necessary ingredients for the application of, this section is that the payment must be made I by the person liable to pay it., or, by his duly authorised agent. It has been held by a Bench of this Court in - Ramswarup Prasad V/s. Harihar Prasad, AIR 1942 Pat 363 (C) that a mortgagor who has parted with all his interest in the mortgaged property is not a person liable to pay the debt and the payment made thereafter by him cannot save limitation under Sec.20, Limitation Act. Admittedly, the payment of Rs. 600 towards interest 011 the first mortgage bond, Ex. 1, was made after the mortgagor had parted with his interest in all the three mauzas, namely, mauzas Bansjora, Simatanr and Bahiardih. The trial Court, therefore, held that this payment could not save limitation under Sec.20, Limitation Act. Mr. Sinha appearing for the plaintiff-respondent has frankly conceded that this payment could not save limitation under that section. The position is perfectly clear. Even if Bahiardih is taken to be one of the mortgaged properties, all the three villages named above were sold prior to 1-4-1937, when the payment of Rs. 600 was made by the mortgagor towards interest of the first mortgage, Ex. 1. On this date. The position is perfectly clear. Even if Bahiardih is taken to be one of the mortgaged properties, all the three villages named above were sold prior to 1-4-1937, when the payment of Rs. 600 was made by the mortgagor towards interest of the first mortgage, Ex. 1. On this date. the mortgagor was not, therefore, liable to pay the debt within the meaning of Sec.20, Limitation Act, and this payment could not save limitation so far as the claim on this mortgage bond is concerned. The plaintiffs suit with regard to this mortgage bond, therefore, is obviously barred by limitation. 10. The payment of Rs. 100 towards the dues of the second mortgage, Ex. 1 (a), was made, as already stated, on 16-8-1934. By that time the mortgagor had lost his interest in mauzas Bansjora and Simatanr. His interest in mauza Bahiardih, however, was subsisting at that time. Mr. Sinha has contended that this mauza Bahiardih was also one of the mortgaged properties, and as on the date of the payment of Rs. 100 the mortgagor had subsisting interest in some of the mortgaged properties, limitation was saved under Sec.20, Limitation Act. Mr. De has, however, argued that Bahiardih was not one of the mortgaged properties, and the only properties which were given in mortgage under the two mortgage bonds were the mortgagors interest in mauzas Bansjora and Simatanr, and, as his interest in these mauzas had passed by sale prior to the payment mentioned above, limitation could not be saved. The decision of the question whether the payment of Rs. 100 towards the second mortgage bond saved limitation ornot, therefore, depends on the determination of the question whether Bahiardih was also one of the mortgaged properties or not. If it is held that Bahiardih was also mortgaged, the claim on the basis of this bond would be within time. On the other hand, if it is held that Bahiardih :was not mortgaged, the said claim would be barred by limitation. 11. The determination of the question whether Bahiardih was mortgaged under the two bonds or not depends on the construction of the two documents, Exs. 1 and 1 (a). It may be mentioned that the terms in both these documents are almost similar with slight variations here and there of no importance, and the construction of one will govern the other also. 1 and 1 (a). It may be mentioned that the terms in both these documents are almost similar with slight variations here and there of no importance, and the construction of one will govern the other also. I will, therefore, deal with this point with reference to the recitals made in the first mortgage bond, Ex. 1. The bond contains two schedules, ka and kha. Schedule ka is described to contain names of tenants of mauza Bahaldih (alias Bahiardih) whose rents had been assigned to the mortgagee by Jat and the boundaries of their household lands, and consists of the above mentioned Asvin kist of royalty amounting to Rs. 1,000. Schedule kha is described to contain sthita-bandhaki (mortgaged) properties and consists of only mauzas Bansjora and Simatanr. Paragraph 14 recites that the properties speci- fied and described in schedule kha below to this deed together with surface and subsoil lands shall always be treated as surety and security for realisation of interest and principal due to the mortgagee. Para. 12 contains a covenant that the mortgagor will not transfer or encumber in any way the mortgaged properties described in schedule kha so long as the amounts are not paid in full. No such covenant has been made with respect to schedule ka properties, though in that very paragraph it is stated that the mortgagor had not so far in any way encumbered the same. Thus it appears that the properties that were mortgaged were only those which were described in schedule kha, namely, mauzas Bansjora and Simatanr and the royalty payable with regard to Bahiardih coal lands described in schedule ka did not form part of the mortgaged properties. The plaintiff has himself given two schedules in his plaint. Schedule A purports to give the description of the mortgaged properties, whereas schedule B is described to contain the rents payable. Schedule A contains only mauzas Bansjora and Simatanr, whereas the royalty to be realised from the tenants of mauza Bahiardih has been mentioned in schedule B. No doubt, in para. 3(f) of the plaint it has been stated that the rent payable by the tenants described in Sch. B was hypothecated to pro forma defendants, but while praying for the relief by sale of the mortgaged properties the plaintiff has unambiguously indicated that the properties morgaged were those which were described in Sch. 3(f) of the plaint it has been stated that the rent payable by the tenants described in Sch. B was hypothecated to pro forma defendants, but while praying for the relief by sale of the mortgaged properties the plaintiff has unambiguously indicated that the properties morgaged were those which were described in Sch. A. This is clear from relief (c) which is in the following terms: "That if the defendants fail to pay up the decretal amount in respect of the mortgage within the period of grace, the plaintiff be given a decree to realise the entire amount by sale of the mortgaged property fully described in Schedule A below." The facts and circumstances stated above leave no room for doubt that Bahiardih was not mortgaged under either of the two mortgage bonds. 12 Mr. Sinh,a has, however, relied on certain statements made in the two bonds, and has contended that they establish that Bahiardih was also one of the mortgaged properties. In para. 7 of the bond it has been stated that for the purpose of payment of the annual interest of Rs. 1,000 every year without any objection towards interest, the mortgagor gave to the mortgagee in jat and barat the fixed rent payable by the tenant as specified in schedule ka below. The word barat means assignment. But it is not known as to what the word jat means. Mr. Sinha contends that this word is used in the sense of mortgage, but there is no authority for f ining to such conclusion. At any rate, the use the word barat (assignment) makes it per-ctly clear that schedule ka property was assigned to the mortgagee for due payment of the interest and thus it could not be mortgaged. Paragraph 14 provides that should any cause of action arise, the mortgagee shall be competent to realise the full amount due to him together with interest and cost by selling the property of schedules ka and kha by auction. Mr. Sinha has, therefore, argued that this provision clearly shows that the mortgagor had given the right of realisation of the rents or royalties of the coal lands of mauza Bahiardih from the lessees in mortgage unfler the two mortgage bonds. I do not find any merit in this argument. Mr. Sinha has, therefore, argued that this provision clearly shows that the mortgagor had given the right of realisation of the rents or royalties of the coal lands of mauza Bahiardih from the lessees in mortgage unfler the two mortgage bonds. I do not find any merit in this argument. The documents have to be read as a whole andp1 , in my opinion, when they are read as a whole, they fully, establish that only mauzas Bansjora and Simatanr were mortgaged under the two mortgage bonds and Bahiardih alias Bahaldih was lot one of the mortgaged properties. On the above finding, the payment of Rs. 100 towards the dues of the second mortgage bond, Ex. 1 (a) by the mortgagor becomes subsequent to his having parted with all his interests in the entire mortgaged properties and, as such, for. the reasons already given while dealing with the claim on the basis of the first mortgage, Ex. 1, ft cannot save the bar of limitation for the claim on the basis of this mortgage also. The claim on the basis of the second mortgage, Ex. 1 (a), is also, therefore, barred by limitation. 13. For the reasons given above, I hold that the suit of the plaintiff is barred by limitation and should have been dismissed on that ground. 14. The result, therefore, is that the appeal succeeds and is allowed. The judgment and the decree of the court below are set aside and the suit is dismissed with costs throughout payable to the appellant. Rai, J. 15 I agree.