Brij Kishore vs Sumer Chand and Others

Vinod K. Sharma, J.—The present Regular Second Appeal arises from the judgment and decree dated 28.4.1980 passed by the learned Additional District Judge, Narnaul, vide which the appeal filed by the plaintiff-respondent was accepted and the judgment and decree dated 24.9.1976 passed by the learned trial Court was set aside and the suit filed by the plaintiff-respondents for possession by redemption was decreed on payment of Rs. 3,318/- was allowed.

Bhawani Parshad deceased and defendant Nos. 1 to 5 in the suit mortgaged with possession Shop Nos. 984, 985, 987 and stair case No. 986 in lieu of Rs. 10,000/- by a registered-deed with Mool Chand, father of Smt. Misri, defendant No. 14. The mortgage was to be redeemed within 8 years. Mool Chand died and his daughter Smt. Misri sold her mortgagee rights on 16th of December, 1952 in favour of Mohan Lal, defendant No. 15. Defendant Nos. 1 to 13 were sued as either the mortgagors or successors-in interest of mortgagors. Bhawani Parshad, one of the mortgagors, had three sons out of whom one was Bhola Shankar alias Nanhe, who died during the life time of Bhawani Parshad and the defendant Nos. 1 to 3 are sons of Bhola Shankar. A mutual partition had taken place between Bhawani Parshad and defendant Nos. 1 to 5 on 20th July, 1949 in which shop No. 985 and 1/3rd share of stair case No. 986 fell to the share of Shiv Shankar, defendant No. 5.

Defendant Nos. 1 to 3 brought a suit titled as Kishan Lal and Ors. v. Mohan Lal and Ors. for redemption of whole of the property against defendant Nos. 14 and 15 and other heirs of the Bhawani Parshad in the Court of Sub-Judge, 1st Class, Rewari, in which preliminary decree was passed on 26th March, 1962 against defendant Nos. 14 and 15 on payment of Rs. 6,708.10 annas and four months5 time was given to the mortgagors for depositing the mortgage amount. A final decree was passed on 13th December, 1962. The mortgagors deposited the amount in the month of September, 1962.

On 29th August, 1962 Shiv Shankar, defendant No. 5, sold shop No. 985 along with 1/3 share in the stair-case No. 986 to Gujar Mal and Balwanti Rai, plaintiffs, by representing that he had deposited his share of mortgage money regarding that shop and the same was free from encumbrances.

Defendant No. 1 had filed appeal No. 59 of 1963 in this Court impleading all the defendants against the redemption decree and this Court vide judgment dated 10.7.1972 maintained the decree of the trial Court for redemption only in favour of defendant No. 1 holding that he had alone deposited the amount of Rs. 6,708.10 annas. It was further ordered that the remaining mortgagors would get possession after paying mortgage money of their respective shares. As the plaintiffs had become successors-in-interest of defendant No. 5, they wanted to pay their share of mortgage money amounting to Rs. 2,260.22, but defendant No. 1 refused to accept the same. The plaintiff-respondents accordingly brought a suit for possession by redemption of shop No. 985 and 1/3rd share of stair case No. 986 on payment of Rs. 2,269.22 as their share of mortgage amount.

The said suit was contested by Brij Kishore, defendant, who raised preliminary objection that the suit was beyond limitation. It was further claimed that plaintiffs had no cause of action to file the suit and that the suit was not maintainable in the present form. The ownership of the plaintiffs over die shop in suit was also denied and the sale in their favour was stated to be illegal. It was also alleged in the written statement that mortgage amount was paid on 30th July, 1962 and in case of redemption, 9% interest was claimed in addition to mense profits with effect from 30.6.1962 upto date. On the pleadings of the parties, following issues were framed:

Whether the plaintiffs are owners in possession of the suit property vide registered sale deeds dated 29.8.1962 as alleged? OPP

Whether the property in dispute fell to the share of defendant No. 5 in partition on 20.7.1949 as alleged and he was competent to sell the same to the plaintiffs as alleged? OPP

If issue Nos. 1 and 2 are proved, on payment of what amount the plaintiffs are entitled to redeem the properties in dispute? OPP

Whether the suit is within time? OPP

Whether the suit is not maintainable in the present form? OPD

Whether defendant No. 1 is also entitled to interest at 9% costs of previous litigation and mesne profits as alleged? OPD

Relief.

On issue No. 1, it was held that the plaintiffs were not in actual possession of the shop in suit but they were held to be owners of the same. On issue No. 2, it was held that Shiv Shankar, defendant No. 5, was competent to sell the property to the plaintiffs. Issue Nos. 3 and 6 being inter-connected were taken up together and it was held that the plaintiffs were entitled to redeem the property on payment of Rs. 3,318A and issue No. 6 was partly answered in favour of defendant No. 1. On issue No. 4, the suit of the plaintiffs was held to be barred by time. Issue No. 5 was decided in favour of the plaintiffs. In the result, the suit filed by die plaintiffs was dismissed on 24.9.1976 leaving the parties to bear their own costs.

The plaintiff-respondents filed an appeal in which finding on issue No. 4 was assailed which was regarding the question of limitation. The learned lower Appellate Court held that as the mortgage-deed Ex.PW-5/2 showed that the mortgagor had agreed to pay the entire mortgage money to the mortgagee within 8 years and to redeem the property, the suit had to be treated within limitation. It was further held that the limitation would start running after 8 years. The support to this finding was drawn from the judgment of this Court in the case of Hargudial Singh Dhian Singh Vs. Des Raj Lachman and Others, . In the said judgment, this Court was pleased to hold that mortgage money does not become due within Article 132 of the Limitation Act 1908 until mortgagors, right to redeem and the mortgagee''s rights to enforce the security have accrued. The reliance was placed on the judgment of the Hon''ble Privy Council in the case of Lasa Din v. Mt. Gulab Kunwar and Ors. 1932 Privy Council 207. The learned lower Appellate Court also placed reliance on the judgment of the Hon''ble Andhra Pradesh High Court in the case of Maturi Umamheswara Rao and Others Vs. Pendyala Venkatrayudu and Others, .Accordingly, finding on issue No. 5 was reversed and the suit filed by the plaintiff-respondents were decreed.

Mr. Rajesh Garg, learned Counsel appearing on behalf of the appellant, raised the following substantial question of law:

Whether in a case where the mortgagor''s right to redeem the property is not restricted for a specific period, the limitation is to start running from the date of mortgage and not on expiry of the period so fixed?

The learned Counsel for the appellant contended that the mortgage-deed was executed on 5th of January 1944 with an option to redeem the same within period of 8 years. The contention of the learned Counsel for the appellant, therefore, was that in the present case limitation was to start running from 5th January, 1944 and, therefore, the suit filed was beyond the period of limitation.

Learned Counsel for the appellant further contended that even on redemption of mortgage by the appellant, the plaintiff-respondents had a right to get the same redeemed within 30 years of the original mortgage-deed or within 12 years from the date of redemption, which according to the learned Counsel for the appellant, was 26.3.1962 i.e. the date when the payment was made. Learned Counsel for the appellant placed reliance on the judgment of the Hon''ble Supreme Court in the case of Vallikat Thekkedath Valappil Lakshmikutty Amma and Others Vs. Vallikat Thekkedath Valappil Demodara Mennon and Others, to contend that once one of the co-mortgagors redeemed the mortgage and subrogated into shoes of mortgagee, the other co-owners are entitled to pay to the extent of respective shares of mortgage amount and seek possession from the co-mortgagor within 12 years from the date of redemption of the mortgage. According to the learned Counsel for the appellant, the present suit having been not filed within a period of 12 years or within a period of 30 years from the date of mortgage was to be held barred by time.

The learned Counsel for the appellant thereafter placed reliance on the judgment of this Court in the case of Jamiat Singh Vs. State of Punjab and Others, , wherein this Court was pleased to lay down as under-

A non-redeeming co-mortgagor has two distinct remedies vis-a-vis the redeeming co-mortgagor i.e. (i) to get the property redeemed within the period of limitation prescribed by Article 148 of the Limitation Act (now 61 of 1963 Act) and (ii) an equitable right to get possession of his share of the property on payment of his share of the mortgage money within twelve years from the date of the redemption of the hypotheca by the redeeming co-mortgagor. It is not a matter of dispute that the redeeming mortgagors could file a suit for contribution or recovery of the mortgage amount paid by them in excess of their share within twelve years from the date of the redemption of the original mortgage or taking possession of the land of the non-redeeming mortgagors. It then follows that non-redeeming mortgagors could also enforce their shares within that very period that is 12 years, on payment of their share of the mortgage money. A non-redeeming mortgagor''s right to get his portion or share of the hypotheca on contribution to the redeeming co-mortgagor the extent of his share of the mortgage debt is correlated right which accrues to the former and survives or remains alive till the redeeming mortgagor has the right to recover the excess amount paid by him at the time of redeeming the mortgage. This right of the non-redeeming mortgagor cannot possibly be subject to the overall period prescribed for the redemption of a mortgage. Thus it must be held that in equity a redeeming co-mortgagor has a right to reimbursement from a non-redeeming mortgagor to the extent of the latter''s share in the mortgage money and the non-redeeming mortgagor can recover possession of his share of the hypotheca on payment to the redeeming co-mortgagor.

In the instant case, the property in question was initially mortgaged by predecessor in interest of parties to the appeals on 6.6.1922. On 18.5.1974 the appellants redeemed the entire property including the share of non-redeeming mortgagors through a decree of redemption. The appellants secured possession of this property a part of which was subsequently acquired under Land Acquisition Act. During payment of compensation the claim for compensation by the non-redeeming co-mortgagors respondents was upheld.

He also placed reliance on the judgment of this Court in the case of Mange and Others Vs. Des Raj and Others, , wherein it has been held as under:

A non -redeeming co-mortgagor can recover his share after contributions to the redeeming co-mortgagor in possession, either within sixty years from the date of original mortgage under Article 148 or within twelve years from the date of redemption by the redeeming co-mortgagor under Article 132. However, the redemption by one co-mortgagor would not start a further period of sixty years for any co-mortgagors to assert their rights in the redeemed property.

Learned Counsel for the appellant thereafter placed reliance on the judgment of this Court in the case of Shambhu Dayal Vs. Tarawanti and Others, to contend that unless and until the redemption of the property was barred for a specific period, the limitation would start running from the date of the original mortgage-deed and no benefit of the period so fixed could be given.

Learned Counsel for the appellant also contended that for the purpose of computing the period of 12 years, the date of payment of mortgage money is to be taken into consideration and not the date of decree. In support of this contention, he placed reliance on the judgment of the Full Bench of the Hon''ble Qudh High Court in the case of AIR 1942 29 (Oudh) and he also placed reliance on the judgment of the Hon''ble Calcutta High Court reported as Umar Ali and Another Vs. Asmat Ali and Others, .

I have considered the contentions raised by the learned Counsel for the appellant and find no force in the same.

It may be noticed that in the present case, the mortgage-deed contained a stipulation that the mortgagors could get the property redeemed within a period of 8 years from the date of execution of the sale deed. Though the mortgage-deed gave right to get the property redeemed prior to the date stipulated therein, but the mortgagee did not get a cause of action to seek foreclosure before the expiry of said period. In that situation, learned lower Appellate Court was right in coming to the conclusion that mortgage money would be deemed to have become due only on expiry of period of 8 years, as the rights of mortgagors and mortgagees have to be crystalized to start the period of limitation as was held by this Court in the case of Hargudial Singh Dhian Singh (supra). Even if seen from the other angle, it would be noticed that the decree originally passed by the learned trial Court was modified by this Court in R.F.A. No. 59 of 1963 on 10th July, 1972 wherein a right was given to the plaintiff-respondents to get their shares redeemed. The operative part of the judgment passed by this Court in the said R.F.A. reads as under:

We have ample power under Order 41, Rule 33, Code of Civil Procedure, to pass such as decree. We accordingly modify the decree of the trial Court and direct that the redemption decree shall be in favour of the appellant and the other co-mortgagors will only be entitled to the benefit of the redemption decree on payment of their share of the mortgage money according to the terms of the preliminary decree.

We may mention that inspite of service none of the respondents has appeared and therefore, we have had no advantage of hearing any arguments on behalf of the respondents.

The appeal is allowed as indicated above, but there will be no order as to costs.

Thus, it has to be seen that the right of the plaintiffs to get the property redeemed accrued to them on the date of passing of the judgment and decree by this Court. It would be, therefore, seen that the learned lower Appellate Court was right in recording a finding that the suit was within limitation and accordingly decreed the same.

The contention of the learned Counsel for the appellant that the order passed by this Court would relate back to original decree and the suit would be deemed to be time barred also cannot be accepted, as by way of judgment and decree, this Court did not declared the law but decided the claims of the parties and, therefore, the same can not be said to relate back to the original decree to hold the suit to be time barred.

In view of what has been stated above, the substantial question of law, as framed, is answered against the appellant and the appeal filed by him is held to be without any merit, which is accordingly dismissed with no order as to costs.