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, Exhibit A, dated 30th October 1875, executed to the plaintiff by defendants Nos. 1 to 11 and four others to recover Rs. 33,541-6-0 made up of Rs. 19,000 principal, due under Exhibit 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 held personally liable.
2. The Judge held the personal remedy to be barred, but passed a decree in plaintiff’s favour 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 Original Suit 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 (paragraph 3) that plaintiff had agreed to receive yearly the interest due 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 [261] document. The Judge held that the plaintiff having expressly waived his right to claim the principal and interest at once at the date of the former suit, had 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 has 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 Exhibit 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 Exhibit 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 only-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 penitentice. 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 Exhibit 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 date 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 was also stated by Lord SELBOBNB 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 Cal. 19 and Mansab Ali v. Gulab Chand I.L.R. 10 All. 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 1161 of Schedule II of the Limitation Act.
7. It is next urged that defendants Nos. 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 first 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 of Ashgar Ali v. Delroos Banoo Begum I.L.R. 3 Cal. 324. Moreover, we observe that this objection was not taken in the former suit of 1877.
8. Another contention is that fifth defendant was a minor at the date of Exhibit 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 and take this objection. The contention appears to be an attempt to take advantage of a statement made by the plaintiff’s second 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 fifth defendant’s age twelve years prior to this suit. We must, therefore, overrule this objection also.
9. The next contention is that in computing the shares of thirty-ninth and ‘forty-ninth defendants the Judge has made a mistake. This objection appears to be well founded. The share of thirty-ninth defendant is 7/480 and that of forty-ninth defendant 7/960, making together 21/960 or 7/320. The contention that as the grant was altumga, 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 MacNaghten (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.
10. It is clear from Exhibit III that though the village was claimed at the inam enquiry as jointly endowed for two mosques, the claim was rejected and the defendant’s family enfranchised the village as a personal inam. This contention, therefore, also fails.
11. The next objection is that the shares of. defendants Nos. 15 and 16, who are the brothers of defendants Nos. 39 and 49, should also be exempted from liability for the plaint debts. The mere fact of defendants Nos. 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 or 7/240.
12. It is next urged that the Judge is in error in omitting to exclude the share of the eighteenth defendant from liability for the debt. It is not denied that eighteenth defendant is in possession, and in the absence of proof that he inherited the share in his possession from those who executed the document A, such share ought not to have been made liable for the debt. This share 7/240 must, therefore, be exempted.
13. The next contention is that under the lease B the plaintiff received more than what was sufficient to cover the interest for the two years 1876 to 1878, and that the Judge was in error in not ascertaining the actual amount received and giving defendants credit for the excess. There is no evidence to show that the receipts were in excess of the interest. Moreover, the document B does not contemplate any such excess. It is admitted that the first year’s receipts were not sufficient to cover the interest for that year, and it appears, from the remark made by the Judge in paragraph 67 of his judgment, that defendants abstained from calling evidence on the point on the understanding that the claim for those two years’ interest was to be set off against the receipts.. This objection, therefore, also fails.
14. It is next urged that defendants are entitled to be credited with two sums,–Rs. 1,000 and Rs. 300–received by the plaintiff. As regards the Rs. 1,000, there is nothing to contradict the plaintiff’s evidence that it was received by him prior to the date of Exhibit A, and that the amount was deducted in 1873, when a previous bond was executed. As regards the Rs. 300, plaintiff has accounted for only Rs. 200, and for the remaining Rs. 100, credit must be given to the defendants.
15. The decree of the lower Court will be modified to the extent indicated above, and the costs of the appeal assessed proportionately.
16. As regards the memorandum of objections filed by the respondent, it is first argued that there is no reason for exempting the shares of defendants Nos. 39 and 49. Although they intervened in the suit, it is not denied that their relationship to the owners of the village entitles them to shares. This being the case, we cannot allow the objection in the absence of evidence of their having forfeited their shares.
17. The objection with regard to the revenue sales is not pressed, as the purchasers are not parties to this appeal.
18. With regard to the remaining objection, it is conceded by defendants’ pleader that the kudivaram right of the three persons named in document A in items Nos. 2 to 10 of the plaint schedule was included in the property hypothecated. We shall, therefore, direct that the kudivaram right of the first, third and sixth defendants in the said items be also held liable for the plaint-debt.
19. There will be no order as to the costs of this memorandum of objections.
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Period of Time from which period begins Description of Suit. limitation to run ---------------------------------------------------------------------------- For compensation for Six years When the period of limitation the breach of a would begin to run against a suit contract in brought on a similar contract not writing registered. registered.] ----------------------------------------------------------------------------
