Judgement

Appeal (No. 70 of 1926) from a decree of the High Court (September 1, 1921) affirming a decree of the Subsidiary Judge of Sivaganga.

The suit was brought on October 7, 1915, by the appellant to enforce a mortgage executed on March 19, 1910. Two questions arose—namely, (1.) whether the suit was barred by the Indian Limitation Act, 1908, Sch. I., art. 11, and (2.) whether the mortgage was void as having been executed to defeat or delay creditors.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge held that the suit was not barred by limitation, but that the mortgage was not supported by consideration and was executed in order to defeat creditors. He dismissed the suit.

The High Court affirmed the decree, holding that the mortgage was valid, but that the suit was barred.

1928. Feb. 14, 16. Dunne K.C. and Narasimham for the appellant.

De Gruyther K.C. and Parikh for respondents Nos. 5-12.

[Reference was made to Thakur Barmha v. Jiban Ram Marwari (( 1913) L. R. 41. I.. A. 38.) ; Mina Kumari v. Bijoy Singh Dudhuria (( 1916) L. R. 44 I. A. 72.); Ramasami Naik v. Ramasami Chetti (( 1907) I. L. R. 30 M. 255, 264.); Order xxi., rr. 54, S&-63.]

March 12. The judgment of their Lordships was delivered by

LORD SHAW. This is an appeal from a decree dated September 1, 1921, of the High Court of Judicature at Madras, affirming a decree dated September 19, 1916, of the Temporary Subordinate Judge of Sivaganga.

The suit out of which the appeal arises was brought by the appellant as mortgagee for recovery of moneys due on his mortgage bond about to be referred to. That bond is dated March 19, 1910.

Muthiah Chetti and Raman Chetti were undivided brothers; the former was father of respondents 1 and 2, the latter father of respondents 3 and 4. They carried on a money-lending business at Rangoon. They both died prior to the date of the mortgage in question. After their deaths the respondents 1-4 still formed a joint and undivided Hindu family. They were, however, all minors, their guardians being Nagamai Achi, mother of the first two respondents, and Stalls or Minakshi Achi, mother of the respondents 3 and 4.

This mortgage dated March 19, 1910, was executed by the two ladies on their own behalf and on the behalf of their respective sons. It was in favour of the present appellant, who is the brother of one of the ladies. Respondents Nos. 5-12, or their representatives, also had a money-lending business, and on February 14, 1910, they had brought a suit against the before mentioned minors claiming a decree for a debt of Rs.38,413. On March 14, 1910—that is to say, five days before the mortgage under investigation—they made an application to the Court for attachment before judgment of the immovable properties belonging to the respondents 1-4, and on March 18 the Court passed an order for conditional attachment. On the following day the two ladies executed the mortgage which is the subject of this suit. It covered all the properties belonging to respondents 1-4, that is, to the minors aforesaid. It purported to have been for a consideration of Rs.35,000, of which Rs.1800 was alleged to have been paid in cash.

On April 4, 1910, the Court made an order absolute. It was in the following terms " No objection to attachment subject to mortgage already credited in favour of Muthu Chetty. Petitioner does not admit any such mortgage at present and wants the attachment as asked for. Attachment and order made absolute."

The respondents 5-12 proceeded with their action, obtained decree thereunder on January 24, 1911, and having applied for execution of their decree by sale with permission to bid, the present appellant put in a claim and petition on March 20, 1912, to the properties in respect of his mortgage and prayed that the properties should be sold subject thereto. The appellants claim was rejected by an order of April 15, 1912, which held that the alleged mortgage was a sham transaction.

So far as the question of limi