Parameswaran Thampi vs Kanakamma Thankachi and Others

Varadarajan, J.—The first Defendant in Original Suit No. 205 of 1969 on the file of the Principle District Munsif, Padmanabhapuram, who succeeded in the trial Court but failed in the lower appellate Court, is the Appellant.

The first Respondent, Kanakamma Thankachi, filed the suit for redemption of the mortgage covered by exhibit A-1, dated 9th September 1062 M. E. corresponding to 25th June 1886, executed by the then Karnavan of her tarwad, Chempakaraman Marthandan, in favour of the Appellant''s predecessor-in-interest Chinnamma Pilla for 350 fanams. She alleged that a subsequent charge over the same property had been created by a subsequent Karnavan Champakaraman Vellayudhan in favour of Lakshmi Pilla, the subsequent predecessor-in-title of the Appellant, under the Original of exhibit A-2, dated 1st February 1090 M.E. corresponding to 17th July 1915. She further alleged that Lakshmi Pilla had assigned the mortgagee''s right covered by exhibit A-1 in favour of one Pakianatha Nadar under the Original of exhibit B-1, dated 7th February 1106 M.E. corresponding to 23rd September 1930, and that she, the first Respondent, was the successor-interest of the mortgagee Champakaraman Marthandan and was entitled to redeem.

The Appellant''s defence was that the property had already been mortgaged usufructuarily to his maternal grand-mother Chinnamma Pilla Thankachi in 1040 M.E. itself and exhibits A-1 and A-2 had not been accepted by the mortgagees and that the suit for redemption of the said mortgage of 1040 M.E. was barred by limitation. He further contended that even the suit on the basis of the mortgage and charge, exhibits A-1 and A-2 were barred by limitation.

The learned District Munsif dismissed the suit holding that the first Respondent has not proved title to the property or that the mortgage and charge under exhibits A-1 and A-2 had been accepted by the mortgagees, without considering the question of limitation. But the learned Subordinate Judge, on appeal, held that the mortgage and charge under exhibits A-1 and A-2 had been accepted by the mortgagees, and decreed the suit holding that there is no bar of limitation, on the basis that exhibit A-2 was a porakkadam and under the Travancore Law, the mortgagor had a period of 62 years from the date of exhibit A-2, viz., 50 years provided that under Law for redemption and 12 years being an additional period granted in case there was a porakkadam over the property, and that the suit, under the Travancore Law, should have been filed before 1st December 1152 M.E., and the new Limitation Act of 1963 provides a period of 5 years u/s 30 after it came into force for filing the suit and that the suit has been filed before the expiry of that period.

The learned Counsel for the Appellant advanced arguments before me only on the question of limitation. It is not disputed that exhibit A-2 says that it is a porakkadam and that u/s 20 (1) of the Travancore Limitation Regulation VI of 1100 M.E. the mortgagee will have a further period of 12 years to redeem in additional to the period of 50 years provided under Article 136 of that Regulation which says that the mortgagor shall have 50 years from the date on which the right to redeem or to recover possession accrues in a suit against a mortgagee to redeem or recover immovable property mortgaged. Section 20(1) of the Limitation Regulation VI of 1100 M.E. reads thus:

If, before the expiration of the period prescribed for the redemption of a mortgage, the mortgagee accepts from the mortgagor a Puravaippu or Purakkadam deed creating a further charge on the mortgaged property and duly registered to prescribed period of limitation shall be computed from the date of such Puravaippu or Purakkadam deed.

The Purakkadam has been created by a registered deed of which exhibit A-2 is a registration copy. Reference is made in the Bench decision of the Travancore-Cochin High Court in Bhageerathi Pilla Omanakutty Amma v. Kochan Nadar AIR 1952 T.C. 286 to the Full Bench decision in Gnana Prakasam v. Samual 13 Trav. L.J. 37 where it had been held.

Where an othi contained a direction empowering the mortgagee to plant trees and make other improvements on the property mortgaged, coupled with or implying a promise by the mortgagor to compensate the mortgagee for such improvements, the combined effect of the direction and the promise was to confer on the mortgagee the right to remain in possession for a period of twelve years in the absence of any other clause in the instrument indicating an inconsistent or contrary intention.

The explanation to Section 20 of the Limitation Regulation VI of 1100 M.E. says that the word mortgagee in the section includes any person who could legally represent the mortgagee or an agen duly authorised by him to act on his behalf. Section 6 of the Part B States (Laws) Act (III of 1951) says.

It immediately before the appointed day, there is in force in any Part B States any law corresponding to any of the Acts or Ordinances now extended to that State, that law shall save as otherwise expressly provided in this Act, stand repealed.

Section 2 of that Act says that in that Act the appointed day means the date on which the Act comes into force. There is no dispute that that Act came into force on 1st April 1951 and that the Indian Limitation Act, 1908, became applicable to the area concerned from 1st April 1951 and that the Limitation Regulation VI of 1100 M.E. stood repealed with effect from that date. Where as Article 136 of the Limitation Regulation VI of 1100 M.E. provided a period of 50 years from the date on which the right to redeem or to recover possession accrues for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged, Article 148 of the Limitation Act, 1908, provided a period of 60 years from the date on which the right to redeem or to recover possession of immovable property mortgaged accrued. Section 30 of the Limitation Act, which granted a period of 2 years for the institution of suits in cases where the period prescribed was shorter than that prescribed by any law that was previously in force in a Part B State, has now been repealed by the Adaptation of Laws (No. 2) Order of 1956. Therefore, if the period of Limitation prescribed in the Limitation Act of 1908 was shorter than the period prescribed in the Limitation Regulation VI of 1100 M.E. the mortgagor would have had a period of 2 years from 1st April 1951 to file the suit. But Section 30 of the Limitation Act, 1908, would not be attracted in this case, as the period prescribed in the Limitation Act, 1908, which is 60 years as mentioned above, is not shorter but larger than the period of 50 years prescribed in Article 136 of the Limitation Regulation VI of 1100 M.E. In Syed Yousuf Yarkhan and Others Vs. Syed Mohammed Yarkhan and Others, a Wakf in Hyderabad State was dispossessed of its properties on 20th September 1937. Under the Hyderabad Limitation Act (II of 1322-F) then in force, there was no limitation for a suit for recovery of a Wakf property, as by virtue of Section 29 (c) such a suit was outside the Act. The Part B States (Laws) Act, 1951, came into force and extended the Limitation Act of 1908 to Hyderabad State on 1st April 1951. On 3rd February 1956 a suit was instituted for recovery of possession of the property. It has been held that the suit was governed by the Indian Limitation Act inasmuch as the period of limitation prescribed by Article 142 was shorter than that prescribed by the Hyderabad Limitation Act (which was unlimited) and as such the suit had to be brought within two years from 1st April 1951 on which date the Indian Limitation Act was extended, in view of Section 30 of the Limitation Act, 1908, which enabled the Plaintiff in such cases to institute the suit within two years after 1st April 1951. It has been observed in that decision that the extension of the Indian Limitation Act, 1908, to Hyderabad and the consequential change in the law prescribing a shorter period of limitation did not confiscate the existing cause of action and must be regarded as an alteration in the law of procedure for the enforcement of the cause of action, and that the normal rule that the law of limitation applicable to the suit is the law in force at the date of the instituion of the suit.

Section 30 of the new Limitation Act, 1963, which came into force on 1st January 1964, reads thus:

Notwithstanding anything contained in this Act--

(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of five years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, which ever period expires earlier;....

Now the period of five years mentioned in Clause (a) of Section 30 has been extended to seven years. Section 30 of the Limitation Act, 1963, would not also be attracted in this case as the suit was instituted in 1969, for the period of sixty years provided in Article 148 of the Limitation Act, 1908, for the redemption of the mortgage covered by exhibit A-1, dated 25th June 1886 had expired even before the new Limitation Act, 1963, came into force. Section 31 of the new Limitation Act, 1963, lays down:

Nothing in this Act shall--

(a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908, expired before the commencement of this Act, or

(b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such commencement.

The learned Counsel for the Appellant submits that since the period prescribed in Article 148 of the Limitation Act, 1908, is sixty years and is larger than the period of fifty years prescribed in Article 136 of the Limitation Regulation VI of 1100 M.E. and the Limitation Act of 1908 had been made applicable to the area concerned on 1st April 1951 by the Part B States (Laws) Act III of 1951 the suit should have been filed within sixty years from the date of mortgage, exbibit A-1, namely prior to 25th June 1946. He further submits that there is no provision in the Limitation Act, 1908, corresponding to Section 20 of the Limitation Regulation VI of the 1100 ME. which, as already stated, gave a further period of 12 years for redemption in case there was a Puravaippu or Purakadam over the tame property, and that even if a period of 12 years could be added to the period of 60 years allowed by Article 148 of the Limitation Act, 1908, the suit should have been filed in 1958, and is clearly barred by limitation having been filed only in 1969. There is no provision in the Limitation Act, 1908, corresponding to Section 20 of the Limitation Act, Regulation VI of 1100 M.E., and therefore, it is not possible to add a period of 12 years to the period of sixty years provided in Article 143 of the Limitation Act, 1908, which refers only to the mortgage. The decision in Nachappa Goundan Vs. Samiappa Goundan and Another, arose out of a mortgage executed on 15th April 1921 after four other prior mortgages had been executed. The learned Judges have observed in that decision thus:

The doctrine of consolidation has been recognised by the Judicial Committee in Ramarayanimgar v. Maharajah of Venkatagiri ILR Mad. 180....

This decision is an authority for the proposition that the Transfer of Property Act of 1882 enacted by implication that a mortgagor seeking to redeem one mortgage shall not be entitled to do so without paying the sums due under a separate mortgage or charge if the latter relates to the same property. It is a statutory right that is given by the Act, though not expressly, that in cases where there are two encumbrances on the same property, the mortgagor is not entitled to redeem the one without redeeming the other. This decision is also an authority for the proposition that whether the other encumbrance is a mortgage or a charge, in either case, the mortgagor has to pay sums due thereunder before he can redeem the mortgage which he seeks to redeem.... The old section and the new section may now be set out:

Section 61--before amendment.

A mortgagor seeking to redeem any one mortgage shall in the absence of a contract to the contrary, be entitled to do so without paying any money due under any separate mortgage made by him or by any person through whom he claims, on property other than that comprised in the mortgage Which he seeks to redeem.

Section 61--as amended:

A mortgagor who has executed two or more mortgages in favour of the same mortgagee shall in the absence of a contract to the contrary, when the principal money of any two or more of the mortgages has become due,'' be entitled to redeem any one such mortgage separately, or any two or more of such mortgages together.

The words on property other than that comprised in the mortgage which he seeks to redeem have been omitted in the new section. Now whether the mortgages are on the same property or on different properties, there is no right of consolidation and the mortgagor may redeem any one mortgage, or one or more mortgages without redeeming the others. This result was reached by Section 24 of Act 20 of 1929.

Therefore, after the Amendment Act XX of 1929, the mortgagee was not entitled to insist on the mortgagor redeeming the charge created under the original of exhibit A-2 before he could redeem the mortgage created under exhibit A-1. Therefore, it would follow that after the Limitation Act, 1908, had been made applicable to the area concerned by the Part B States (Laws) Act III of 1951, in the absence of any provision in the Limitation Act, 1908, corresponding to Section 20 of the Limitation Regulation VI of 1100 M.E., it was open to the mortgagor to redeem the mortgage covered by exhibit A-1 alone and it was not open to the mortgagee to insist on the redemption of the charge covered, by the original of exhibit A-2 before the mortgagor could be allowed to redeem the mortgage covered by exhibit A-1. The Limitation Act, 1908, had been made applicable to the area with effect from 1st April 1951 and the mortgagor had to redeem the mortgage covered by exhibit A-1 within sixty years from the date of its execution, namely 25th June 1886, and the suit filed only in 1.969 is clearly barred by limitation, and it is not possible to agree with the learned Subordinate Judge that the mortgagor had a period of sixty-two years from the date of exhibit A-2 for redemption and could file the suit within five years after the new Limitation Act, 1963, came into force in view of Section 30 of that Act and that the suit is in time. I agree with the learned Counsel for the Appellant and find that the suit is barred by limitation.

The learned Counsel for the Appellant submits that if the transaction covered by exhibit B-1, dated 7th February 1106 M.E. corresponding to 23rd September 1930, is only an assignment of the mortgagee''s right covered by exhibit A-1, Article 134 of the Limitation Act, 1908, which corresponds to Article 122 of the Travancore Limitation Regulation VI of 1100 M.E., will not apply and that exhibit B-1 is, in fact, an othi in which the Appellant''s predecessor-in-title Lakshmi Pilla has stated that the property covered by exhibit B-1, which is same as the one covered by exhibit A-1, was his own (ende vagha). Article 122 of the Travancore limitation Regulation VI of 1100 M.E. corresponding to Article 134 of the Limitation Act, 1908, prescribes a period of 12 years from the date of knowlegde of the transfer in a suit to recover possession of immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration. The suit would have been barred by limitation even if it had not been filed prior to 23rd September 1942, if it had been proved that the mortgagee of his successor-in-interest had knowledge of the othi transaction covered by exhibit B-1. The learned Counsel for the Appellant admitted that there is no evidence about any knowledge of the transaction covered by exhibit B-1 on the part of the first Respondent or her predecessor-in-title. Therefore, it was not open to the Appellant to contend that the suit would have been barred by limitation if it had been filed after 23rd September 1942.

The second appeal succeeds in view of my finding that the suit is barred by limitation, and is allowed, but under the circumstances of the case, without costs. No leave.