JUDGMENT

Wazir Hasan, A J C - This is the defendant's appeal in the suit for redemption of a mortgagee dated the 18th October, 1889, (Exhibit B-1) executed by one Beni Madho in favour of the predecessor-in-interest of the defendant-appellant for a sum of Rs. 4,000. The mortgage was a usufructuary one and in pursuance of the conditions of the mortgage the mortgagee entered into possession of the mortgaged property. The profits of the property exceeded the interest to which the mortgagee was entitled under the terms of the mortgage by a sum of Rs. 20 per annum. Under the deed this sum was to be repaid annually by the mortgagee to the mortgagor. The claim as disclosed in the plaint was simply for the redemption of the mortgagee just now mentioned. In defence, however, the appellant put forward two more mortgages executed by Beni Madho in relation to the same property which was the subject of the mortgage of the 18th October, 1889. The first of these is dated the 20th February, 1897; (Exhibit B-2) and the second is dated 22nd May, 1900 (Exhibit B-3). Exhibit B-2 is a mortgage in consideration of a further loan of Rs. 658-8 and Exhibit B-3 evidences a mortgage for an additional advance of a sum of Rs. 1,603-9. We have already seen that the property had passed into the possession of the mortgagee in its entirety under the deed of the 18th October, 1889. Under the mortgage of the 20th February, 1897, the sum of Rs. 20 due annually by way of paramsana to the mortgagor was thence forward to be credited towards the part payment of the interest due on that deed. The rate of interest was fixed at 1 per cent. per mensem with compound-interest to be calculated on the basis of monthly rests. Under the mortgage of the 22nd May, 1900, the principal amount borrowed thereby was to carry the same rate of interest as was stipulated for in the mortgage of the 20th February, 1897. The term of 5 years allowed for redemption in the first mortgage had expired and by the mortgage of the 22nd May, 1900, the earliest mortgage was renewed for a term of 40 years certain at the end of which the mortgagor was given the right to redeem and in default of the exercise of that right the mortgagee was entitled to foreclose the mortgage. The defendant claimed besides the amount due under the mortgage of the 18th October, 1889, the principal and interest at the rate agreed due under the mortgages of the 20th February, 1897, and the 22nd May, 1900.

2. It will now be convenient to state the array of the plaintiffs in the present suit. Beni Madho, the original mortgagor was succeeded on his death, in the right of survivorship, by his son, Datadin, Datadin's son, Chhatarpal Singh and also by Danpal Singh, who is the son of another deceased son of Beni Madho, Datadin, Chhatarpal Singh and Danpal Singh are the plaintiffs Nos. 1, 2 and 3 respectively. It is common ground that the subject-matter of the mortgages in question was the joint ancestral property of the family of Beni Madho and his co-parceners.

3. In answer to the claim made by the defendant on the basis of the mortgages of the 20th February; 1897 and the 22nd May, 1900, the plaintiffs challenged the validity of the term postponing redemption for forty years and also of the agreement relating to the rate of interest. In other respects they accepted their liability for the sums advanced to their predecessor-in-interest under those mortgages. To this challenge the reply of the defendant was that it could not be entertained because the relief arising thereunder was barred by limitation. The Article relied upon is Article 126 of the first Schedule of the Indian Limitation Act. This defence prevailed in the Court of first instance and the result was that Court held that the term of forty years was binding and the suit brought within that period was premature. The suit was accordingly dismissed.

4. The plaintiffs appealed to the Court of the District Judge of Fyzabad from the decree of the Trial Court which was that of