Motilal vs Vasant and Another

Srinivasa Chari, J.—The mortgagee is the Appellant and this appeal has arisen in a suit filed by one Sadashiv for redemption of a mortgage said to have been executed by one Seethabai on 7th Shehrewar 1311F. The following geneological table would indicate the relationship of the parties:

BHODRAJ | Seethabai = Bhaurao = Deobai (Mortgagor | died issueless) ----------------- | | | | Rukmanibai Krishnabai Girjabar = Sadashiv (died without | | issue) Vishwana ----------------- | | Madhuknr Vasant

This property belonged to Bhaurao and after his death his widow succeeded to the property as joint tenants. Seethabai mortgaged this property with the Appellant. She died issueless and was survived by Deobai who became entitled to the property as the surviving widow. After the death of Deobai, her daughters Krishnabai and Rukmanibai succeeded to the property as the daughters of Bhaurao and being governed by the Mitakshara Law as administered in the State of Bombay, became absolute owners of the property. Rukmanibai died issueless. There being no issue, the half share in the property being the stridhan property of Rukmanibai, the person who became entitled to her half share in the property was Sadashiv, her husband, while Krishnabai became entitled to the other half as the other daughter of Bhaurao.

Sadashiv filed a suit against the Appellant the mortgagee for redemption of the mortgage executed by Seethabai in 1311F. This suit was brought on 7th Shahrewar 1347F. The mortgagee raised three objections: (1) that Vishwanath the son of Krishnabai was a necessary party to the suit and his not having been impleaded the suit was liable to be dismissed. The second plea raised was that the suit was time-barred, as it had been brought long after the expiry of 30 years of the date of the mortgage, the period prescribed for suit for redemption under Article 134 of the Hyderabad Limitation Act It may be mentioned that Sadashiv died during the pendency of the suit in the trial Court and Vasant and Madhukar his sons were brought on record as his legal representatives. A specific issue was raised as to whether the suit was time barred, and with regard to that issue, the trial Court saw a finding to the effect that the suit was within time. The Defendant does not appear to have pressed the question before it. The lower appellate Court has not given any finding. As regards the other question as to whether the suit could be decreed without Vishwanath being made a party, the Court held against the Defendant-mortgagee, in the result both the Courts decreed the Plaintiff''s suit for redemption of the whole property. Hence this appeal.

The two points that require consideration are firstly as to whether the suit is liable to be dismissed because Vishwanath who is also interested in the equity of redemption has not been made a party. The second question is as to whether the suit should be held to be barred by limitation because it has been brought 36 years after the date of the execution of the mortgage. As regards the first question it is not settled law that any one of the mortgagors is entitled to sue for redemption of the whole property. It has been so held by a Full Bench of this Court in Bhagwan v. Liaquatunissa Begum 25 D LR 602(A). Once it is established that one of the persons interested in the equity of redemption could file a suit for redemption. Then the next question which arises is as to whether the others interested in the equity of redemption are necessary parties, to a suit for redemption. In this connection it would be desirable to refer to Order 34, Rule 1, Code of Civil Procedure, which reads as under:

Subject to the provisions of this Code, all persons having an interest in every mortgage security or in the-right of redemption shall be joined as parties to any suit relating to the mortgage.

The words ''subject to the provisions of this Code'' would make it clear that this procedure would be subject to the provisions in Order 1, Rule 10 CPC which deals with the impleading or striking out of parties. Order 1 Rule 10 Sub-Rule 2, CPC makes it clear that:

all persons should be added as parties to the suit whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.

It is well known that where necessary parties have not been impleaded the suit is liable to be dismissed. Only those persons would be regarded as necessary parties without whose presence the matters in controversy could not be effectually and completely adjudicated upon. The test therefore is can this suit not be decided without the addition of Vishwanath. The point that has to be decided in this case is as to whether the Plaintiff is entitled to redeem the property and if he is entitled to redeem, on what terms. The terms of the mortgage would make it clear that even in the absence of Vishwanath the question of the right to redeem of the Plaintiff could be decided. Under those circumstances Vishwanath could not be regarded as a necessary party. It may be necessary to make a person a party to a suit where his interests have to be safeguarded, so that he may not be put to the necessity of having to file a suit ever again. Looked at from that point of view the effect of a decree passed in favour of Sadashiv''s heirs would not in any way prejudice the right or interest of Vishwanath. Even on strict equitable principles the Court could decree the suit for redemption to the extent of the share of Sadashiv. That is to say, it could partially decree the suit for redemption on his paying proportionately the amount of the mortgage. Thus it would appear that the interest of Vishwanath would remain unaffected. I am therefore of the opinion that the suit is not liable to be dismissed, because Vishwanath has not been made a party. I might refer in this connection to a decision of the Madras High Court which has also taken the same view: vide Periakaruppa Pillai Vs. Satyanarayanamoorthi, .

The other point which has been urged before me is the question of limitation. The Article of the Hyderabad Limitation Act which would govern this suit is Article 134 corresponding to Article 148 Indian Limitation Act. Article 134 says:

Where the suit is as against the mortgagee for redemption of a mortgage the suit shall be filed within 30 years of the date when the right to redeem and to take possession accrues.

Interpreting these words, it would mean that it is open to the mortgagor to file a suit when the right to redeem accrued to him.

In the mortgage deed the stipulation for repayment is to the effect that the whole amount would be paid within a period of six years in instalments. That means that the mortgagor has been given the option, to repay the mortgage amount within six years of the date of the mortgage. It therefore follows that the mortgagee cannot haw a right to foreclose or to claim the amount of the mortgage before the expiry of six years from the date of the mortgage. In the case of the mortgagor he has a period of six years after the date of the mortgage i.e., 1317 F, allowed to him to redeem the mortgage. The mortgagee cannot enforce his claim until 1317F. Could it be said that where the mortgagee could not claim the amount of the mortgage or foreclose until 1317F, time would commence to run in so far as the mortgagor''s right to redeem was concerned immediately after the execution of the mortgage: That could not be. The mortgagee could not compel the mortgagor to pay the amount at any time before the expiry of six years stipulated in the document. The Privy Council has held that the right to redeem and the right to foreclose are co-extensive, vide Mst. Bakhtawar Begum v. Hussaini Khanam (AIR1914 PC 36 V 1) (C). The test will be as long as the right of foreclosure has accrued to the mortgagee, the mortgagor would be entitled to redeem the mortgage. His right to redeem has not been extinguished. Much stress is laid upon the fact that the words in the Limitation Act are "where the right to redeem accrues to the mortgagor''. It is argued that the right to redeem accrued to the mortgagor on the date of the mortgage. In my opinion it would be putting a very narrow interpretation upon the terms of the document, if it held that irrespective of the fact that the mortgagor has still six more years to pay the amount of the mortgage and redeem, time would commence to run from the date of the mortgage. I am therefore of the opinion that both the pleas raised by the learned advocate for the Appellant cannot stand, and this appeal should be dismissed. It is therefore dismissed with costs.