JUDGMENT
1. This is an appeal against the decree of the District Judge of Trichinopoly by some of the defendants (Nos. 1, 3, 5 to 7, 15, 16, 18, 39 and 49). The suit was brought by the respondent on the hypothecation bond A, dated 80th October 1875, executed to the plaintiff by defendants 1 to 11 and 4 others to recover Rs. 33,541-6-0 made up of Rs. 19,000 principal due under A and Rs. 14,934-12-8 interest thereon together with Rs. 94-8-4 amount of Kist paid by the plaintiff in December 1886 and interest thereon. The plaintiff asked for a decree for the above amount on the responsibility of the hypothecated property and also that defendants be hold personally liable.
2. The judge held the personal remedy to be barred, but passed a decree in plaintiff’s favor for Rs. 31,381-6-0 with interest thereon at 7 per cent. per annum from date of plaint to date of payment plus Rs. 94-8-4 and interest thereon at the same rate from December 1886 and directed the sale of the hypothecated property (with certain exceptions) in default of payment.
3. The first objection argued before us is that the suit was barred by Section 43 of the Code of Civil Procedure by reason of O. S. No. 845 of 1877 instituted by plaintiff to recover the first year’s interest due under the document A. The document provides that interest accruing on the principal sum of Rs. 19,000 at 7 per cent. per annum shall be paid by the 30th October of each year, that the principal itself shall be repaid on the 30th October 1878 and that in default of payment regularly each year the plaintiff shall be at liberty at once to claim payment of the principal and interest in arrears. The first year’s interest not having been paid on the 30th October 1876, the suit No. 845 was brought on the 29th October 1877. The plaint therein stated (para. 3) that plaintiff had agreed to receive yearly the interest duo for each year and the principal at the stipulated time and that he would accordingly receive the interest for 1877 and 1878 and the principal at the time stipulated in the document. The judge held that the plaintiff himself expressly waived his right to claim the principal and interest at once, that at the date of the former suit, no cause of action to sue for more than the interest then due and that Section 43 of the Code of Civil Procedure was no bar to the present suit.
4. It is argued before us that no evidence had been adduced to show that plaintiff had, prior to the date of the plaint in the former suit, waived the right he had to sue for the principal as well as the interest, and that the statement in the then plaint that he was willing to accept the principal and subsequent years’ interest at the times originally fixed in A did not amount to a waiver within the meaning of Section 43.
5. We are unable to accede to this contention. The alternative provision in A is one that was inserted for the exclusive benefit of the plaintiff. He had therefore an option to sue either for the first year’s interest only or for the same together with the principal amount. It was not necessary that he should manifest his intention of waiver by some overt act which could not be recalled. This he did by instituting the suit of 1877 and obtaining the decree for the first year’s interest alone expressly stating in the plaint in that suit that he exercised the option. We are unable to accept the argument for the appellants that in order to save Section 43 it was incumbent on the plaintiff to have previously communicated to the defendants the election made by him. The real test appears to us to be not whether the option was exercised with the privity of the defendants, but whether it was so exercised as to determine the plaintiff’s locus penitentive. The first contention must, therefore, be overruled.
6. It is next contended that the judge was in error in awarding interest on the principal amount subsequent to the 30th October 1878, as A does not provide for interest post diem. We are of opinion that this contention must prevail. The document contains no provision for the payment of interest after the 30th October 1878. We cannot, therefore, treat the interest claimed for the period subsequent to that date as a charge on the hypothecated property. As observed by Lord Cairns in Cook v. Fowler L. R. 7 H. L, 27 “any claim in the nature of a claim for interest after the day up to which interest was stipulated for would be a claim really not for a stipulated sum and interest but for damages, and then it would be for the tribunal before which that claim was asserted to consider the position of the claimant, and the sum which properly and under all the circumstances, should be awarded for damages.” As it was also stated by Lord Selbourne in the same case interest is given post diem on the principle not of contract but of damages for the breach of contract.” This principle has been followed by the High Courts of Calcutta and Allahabad, Gudri Koer v. Bhubaneswari Coomar Singh I. L. R. 19 C 19; Mansab Ali v. Gulab Chand I. L. R. 10 A. 85. Treating the claim as a claim for damages for failure to pay the principal on the 30th October 1878, we must hold it to be barred under Article 116 of Schedule II of the Limitation Act.
7. It is next urged that defendants 1 and 5 were Gosha women and that there is no evidence to show that the transaction under A was explained to them. Both these defendants admitted the execution of A and 1st defendant did not deny her knowledge of its contents. Although they are Gosha ladies, they executed the document, the former in conjunction with her son and the latter in conjunction with her brother. We do not, therefore, think that the present case falls within the scope of the Privy Council’s decision in the case reported in I. L. R, 3 C, 324,
8. Ashgar Ali v. Delroos Banoo Begum. Moreover, we observe that this objection was not taken in the former suit of 1877.
9. Another contention is that 5th defendant was a minor at the date of A. She does not appear to have pleaded minority in her written statement or applied for an issue with regard to it–neither did she appear in the former suit to take this objection. The contention appears to be an attempt to take advantage of a statement made by the plaintiff’s 2nd witness in his cross-examination. The witness was called merely to prove his father’s signature in the document A and we are not prepared to attach much importance to the indefinite statement made by him as to 5th defendant’s age 12 years prior to the suit. We must, therefore, overrule this objection also.
10. The next contention is that in computing the shares of 39th and 49th defendants the judge has made a mistake. This objection appears to be well founded. The share of 39th defendant is 7/480, and that of. 49th defendant 7/960 making together 21/960 or 7/320. The contention that, as the grant was Altumgah, no distinction ought to be made between males and females in computing their shares, is found to be untenable on referring to the passage in Macnaughten (page 329) on which appellants rely. It is clear from that passage that the rule relied on is applicable in the award of shares to persons entitled to participate in the benefit of an endowment of which the profits alone can be divided the endowment itself being impartible.
11. It is clear from Exh. III that although the village was claimed at the Inam enquiry as jointly endowed for two mosques, the claim was rejected and the defendants’ family enfranchised the village as a personal Inam. This contention, therefore, also fails.
12. The next objection is that the shares of defendants 15 and 16 who are the brothers of defendants 39 and 49 should also be exempted from liability for the plaint debts. The mere fact of defendants 15 and 16 having been parties to the former suit does not estop them from claiming the exemption in this suit which the District Munsif had no jurisdiction to entertain. We must, therefore, exonerate their shares which amount to 28/960 = 7/240.
13. [The judgment then deals with certain other objections to the decree and the memo, of objections which are immaterial for this report.]
