Payment by one co-mortgagor does not extend limitation against the others.

1. This appeal has been on behalf of the plaintiff Hakim Rahman Bux, against the decision of the first Additional Subordinate Judge of Bhagalpur dated the 7th February, 1949 reversing a decision of the Munisif, 1st Court, Bhagalpur, dated the 31st May, 1948.

2. The question debated in this appeal is whether the suit of the plaintiff is barred under Article 132 of the Limitation Act or whether Sec.20 of the Limitation Act applies and a fresh period of limitation should be computed from the date of payment made by defendant No. 1, Muhammad Mahmood Hassan one of the sons of Mahboob Ali, who had borrowed the money from the plaintiff on the basis of the mortgage bond dated the 25th of February, 1923.

It appears that Mahboob Ali died and was succeeded by his heirs, namely, his widow, defendant No. 4 who had an interest to the extent of 4 annas, three sons, who had each ah Interest of 3 annas 6 pies, and all his daughters, who had an interest to the extent of 1 anna 9 pies each. It has been found by the lower court that defendant No. 1. had made part payments from the 13th of March, 1925, to the 20th of October, 1940, the total amount being Rs. 2000/-. It has also been found by the lower appellate court that defendant No. 1 did not make the payments as an agent on behalf of the other defendants.

In these circumstances, the question arises whether the suit is barred by the provisions of Article 132 of the Limitation Act. The lower appellate court has found that payment was made only by defendant No. 1 who was not liable to pay the whole debt and who did not make the payment as an agent on behalf of the other defendants. Defendant No. 1 had paid more than his own share of the debt and therefore a decree cannot be granted in favour of the plaintiff as against him. As against the other defendants, the suite was barred by limitation, since section 20 of the limitation Act was not applicable.

3. In support of this appeal Counsel for the appellant put forward the argument that the payment by defendant No. 1 was payment made on behalf of all the other defendants, that the mortgage debt was one and indivisible and that payment made by defendant No. 1 saved limita-tation even with regard to the other defendants who are liable to pay the mortgage debt. In support of this proposition, Counsel relied upon Badri Das V/s. Pasupati Banerji ILR 12 Pat 93 : (AIR 1933 Pat 1) (A) and Baijnath Prasad V/s. Sati Lal Sahu 19 Pat LT 240: (AIR 1938 Pat 383) (B). But we are unable to accent the argument of learned Counsel for the appellant as correct.

The legal position in the Muhammadan law 4s that upon the death of a Muhammadan the whole estate devolves upon his heirs at the moment of his death and the heirs succeed to the estate as tetants-in-common in specific shares. It is also established that each heir of a Muhammadan is liable for the debts of the deceased to the extent only of a share of the debts proportionate to his share of the estate (sections 1 and 43 Muhas Mohammadan Law, 13th edition, at pages 32 and 35).

The cases upon which counsel for the appellant relied, namely ILR 12 Pat 93: (AIR 1933 Pat 1) (A) and 19 Pat LT 240 : (AIR 1938 Pat 383) (B), must be distinguished because these were cases relating to Hindu joint families. We hold, on the other hand, that the present case is governed by the principle laid down in Hakim Saiyid Fida All V/s. Rani Bhuvaneshwari Kuer ILR 20 Pat 770: (AIR 1942 Pat 73 (C). It was laid down by a division Bench of this court in that case that though the mortgage contract was indivisible, there might be cases where the mortgage security becomes split up. One such case was where a Muhammadan mortgagor dies and his heirs succeed to the share of the property according to the shares defined in the Muhammadan Law.

In such a case there is no reason why the mortgagee could not give up his mortgaged lien on the share of any one of the mortgagors by making a proportionate deduction of the mortgage money and enforce his