Pitram vs Lalit Chandra Dutta and Others

Ram Labhaya, J.—This is an appeal from the order of the Dist. J.L.A.D., dated 4-11-1948 by which the order of the Addl. Sub-Judge, A.V.D. dated 17-7-1947 granting pltf. a preliminary decree for sale of the mortgaged property against defts. 1-5, was set aside. The pltf. has appealed to this Ct.

The fasts leading to the litigation are as follows: Dharmanath was the original owner of the land by the sale of which the pltf. wants to recover the mtge. debt due to him. Dharmanath mortgaged 40 bighas out of his share in the land of the patta in question to Mt. Tarapriya, deft. 6, in consideration of a sum of Rs. 1000 on 6-2-1924. On the same day, he borrowed a sum of Rs. 1200 from deft. 7, Bhubindranarayan and mortgaged Anr. 48 bighas out of his share in the patta land. On 2-4-1931, Dharmanath & his brother Ananta (deft. 9) both mortgaged 34 B, 3 K. 12 L. of land jointly to Lalit Chandra Dutta, deft. Section this mtge. was with possession. On 14-6-1931, both the brOrs. borrowed Anr. sum of Rs. 700 from the same Lalit Dutta & mortgaged (sic). By this mtge. deed 40 bighas out of his share of the land of the patta were mortgaged to she pit Dharmanath undertook to reply the can with in a year with interest at 12 per cent per annum. It is on the basis of this mtge. deed that pltf. has sued for recovery of the debt by Bale of the property mortgaged.

On 8-6-1938, Dharmanath was alleged to have paid Rs. 1 towards interest. Anr. sum of Rs. 1 was said to have been paid on 29-4-1941. The two payments towards the interest were endorsed on the back of the mtge. deed by the mtgor. The suit was instituted on 28-3-1946. The debt under the mtge. became due on 5-5-1933. The suit for sale of the mortgaged property would be barred under Article 132 if limitation was not extended either u/s 19 or Section 20, Limitation Act. Plaintiff relies on the two payments towards interest on 3-5-1938 & 29-4-1941 respectively for necessary extension of limitation.

On 23-3-1933 after the last mtge. in pltf''a, favour, Dharmanath sold 43 B. 14 L. of land out of his share in the patta land to deft. 8, Lalit who got a separate patta for the area sold to him. On 13 3-1935, Dharmanath sold Anr. 40 bighas out of his share to deft. 7 Bhubindra, the second mtgee. He also got a separate patta for the area purchased by him Defendant 6, Mt. Tarapriya, sued to enforce her mtge. in 1933. The pltf. In the present case was not a party to that suit. She obtained a final decree for Bale in execution of which 40 bighas of land were sold & purchased by her on 19 8-1937. These three sales exhaust Dharmanath''a share in the lands of the patta in question. In fact, these sales are admittedly in excess of his share.

Plaintiff''s case was that he was not aware of the sales in favour of defts. 6-8. He came to know about them some time before the institution of the suit. He pleaded that he was not bound to redeem the mtge. in favour of defts. 6 & 7 as the claims under the mtges. had become barred against him. He, however, prayed in the alternative that if the Ct. found that the claims under these mtges. were subsisting & enforceable he may be permitted to redeem them in this suit & the sums found due to defts. 6 & 7 be added to the amount due to him under his mtge. & the property in suit sold for the entire amount. Ho such prayer for redemption of the mtges. in favour of deft. 8 was included in the plaint. At a later stage leave to amend the plaint with a view to including this relief was, sought for but it was refused. The trial Judge found that the mtges. in favour of defts. 6 & 7 had become extinct & it was not necessary for the pltf. to redeem them. This finding was in favour of the pltf. He, therefore, decreed pltf''a claim for sale of the property for the amount found due to him on his mtge. The decree was against defts. 1-5, who were the representatives of Dharmanath The pltf. did not appeal from the preliminary decree passed in his favour. Defendant 8 alone appealed the learned Dist. J. held that the suit for sale of the mortgaged property was time barred. He found that at the time of alleged payments of interest, the mtgor. Dharmanath, had no interest left in the property. His entire interest in the property had been sold to defts. 6-8 Payments of interest by him, in these circumstances, could not be effective against the purchasers who were not bound by them. He, therefore, set aside the decree for sale of the property.

On behalf of the pltf. the correctness 39 of the order of the learned Dist. J. has been assailed. The first contention raised is that the suit for sale was not barred by time. We do not think this contention has got any force. The learned Dist. J. when holding that the payments of interest, if any, would not bind the purchasers of the equity of redemption, relied on Pavayi and Others Vs. Palanivela Goundan and Others, and Bank of Upper India Ltd. v. Robert Hercules Skinner AIR 1942 P.C. 67 . His view is fully supported by these authorities.

In Parayi v. Palanivela Goundar A.I.R 1940 Mad. 470 of the Madras H.G. after a careful consideration of a large number of authorities available on the point laid it down that:

A mortgagor, who has lost all interest in the mortgaged property cannot by an acknowledgment within the meaning of Section 19 or by the payment of interest or principal within the meaning of Section 20, bind the person on whom his interest has devolved.

The learned Counsel has tried to distinguish this case on the ground that the assignee of the mtgor. in the case was a stranger & not a mtgee. In this case all purchasers were mtgee. This is a distinction without any difference. The proposition laid down by their Lordships of the Madras H.C. makes no distinction between a mtgee. purchaser & purchaser who had no previous interest in the property. What they held was that an acknowledgment u/s 19 or payment of interest or principal within the meaning of Section SO, Limitation Act, would not bind the person on whom the interest of the mtgor. has devolved if at the time the acknowledgment or payment is made the mtgor. had no interest in the mortgaged property. The Rule so stated does not exclude from its operation a purchaser of the mtgor''a interest who before such purchase was a mtgee. of a part or the whole of the mortgaged property. We do not see how on principle he could Be excluded & the operation of the rule limited only to such put-chasers of the mtgor''s interest as had no right in the property before.

The view of law that prevailed with their Lordships of the Madras H. Order was approved by their Lordships of the P.C. in Bank of Upper India Ltd. v. Robert Hercules Skinner AIR 1942 P.C. 67. The question before their Lordships was whether acknowledgments u/s 19, Limitation Act, made by a mtgor. Who had lost all interest in the property could bind the transferee of the mtgor. Their Lordships held that

An acknowledgment by a transferor given after the transfer of title does not bind the transferee. Section 19 only applies where the acknowledgment has been made before the transferee has derived his title from the acknowledger.

The principle laid down by their Lordships will apply equally to a case of payment covered by Section 20. The mtgor. in this case had sold more then his own interest in the land of the patta & therefore payments by him could not bind the transferees for purposes of giving fresh start to the period of limitation. A suit for sale, in these circumstances, is obviously barred & we have no doubt that the learned Dist. J. took a right view of the matter in setting said e the decree for sale of the mortgaged property.

The learned counsel has next claimed that the pltf. may be allowed to redeem the previous mtges. even if he is not entitled to a decree for sale. This is an impossible claim at this stage of the litigation. Plaintiff''s case, as put in the plaint, was that the mtges. in favour of defts. 6 & 7 had become extinct. He was not bound to redeem them. He did not say anything about the mtges. in favour of deft. Section But as regard the mtges. in favour of defts. 6 & 7, he prayed that if his contention did'' not find favour with the Ct. & the mtges. in favour of defts. 6 & 7 were held to be alive & subsisting; he may be allowed to redeem these mtges. in this suit & the amount found payable by him be added to his claim & a decree for sale for the total amount be passed. It is obvious that relief for redemption was claimed only as a subsidiary relief & that too if the contention raised by the pltf. that the mtges. were extinct did not prevail. The trial Judge found in favour of the pltf. on this point. His finding was that the mtges. in favour of defts. 6 & 7 had become extinct by lapse of time & that pltf. was under no obligation to redeem them. He passed a decree for sale in his favour for the amount found due to him on the mtge. deed in his favour. As the finding on the question of redemption was in favour of the pltf. he had neither the necessity nor the right of appeal. There was no appeal from him either. Defendant 8 alone appealed from the decree of the trial Ct. & succeeded in having the decree for Bale set aside against defts. 6-8 Plaintiffs now seeks redemption of the mtges. in favour of defts. 6 & 7 independently of the relief for Bale that was claimed in the plaint. To this extent the relief now claimed is different from that claimed in the trial of Redemption as an independent relief was not sought. The case of the pltf. was that he was under no obligation to redeem. He now instead of avoiding the obligation claims the right to redeem. This would alter the nature of the claim. There is yet Anr. difficulty in his way. The finding on the position taken up by him was in his favour. He has no right of appeal against it. Again, be cannot directly appeal to this Ct. from the finding which is in his favour. If this favorable finding prejudiced him in any way, he should have appealed to the Dist. J. Not having appealed to that Ct., he cannot directly appeal against the finding of the trial Judge to this Ct. Here he can merely ask for the restoration of the trial Judge''s'' decree & this is not possible as a decree for sale cannot be granted, the suit for Bale having become time barred under Article 132, Limitation Act.

The right of redemption on which the learned Counsel for the pltf. based his argument can only be derived from Section 91, T.P. Act. Under Clause (a) of that section a mtgee. may redeem previous mtges. The implication may be that a mtge. who seeks to redeem a previous mtge. must have a subsisting mtge. in his favour. A time-barred mtge. may not bring the one of a mtgee. under Clause (a) of Section 91. The learned Counsel for the applt. however, contends that even if the suit for sale has become time barred, the pltf., as a mtgee., can redeem the previous mtgeg. With in 60 years under Article 148, Limitation Act, The learned Counsel for the resp. questions the correctness of this view. There is admittedly a conflict of judicial authority on the point. We do not think it necessary for us to resolve this conflict in this case as for reasons given above the pltf. cannot claim this relief at this stage. Besides, even if the view most favorable to him & expressed in Nathmal v. Nilkant A.I.R (20) 1933 Bom. 25, which is relied on by his learned counsel, is assumed as correct, the pltf. can merely ask for the transfer of the securities of defts. 6 & 7. He could not get possession as defts. 6 & 7 were not in possession under their mtges. which were admittedly simple in character so far as deft. 8 is concerned, the mtge. was with possession to the extent of about 17 bighas only. Redemption of this mtge. was not claimed at all & the claim, therefore, cannot be entertained at this stage. The result is that pltf. Can not get possession even if he is permitted to redeem the mtge. in favour of defts. 6 & 7 his learned Counsel states that he does not want redemption if pos-session is not allowed to him. He is not satisfied with a mere transfer of securities. In these circumstances the order of the learned Dist. J. must he up held.

The appeal is accordingly dismissed with costs.

Thadani, C.J.

I agree in the result, but would add a few words.

I do not wish to be understood as subscribing to the proposition stated by my learned brother at p. 6 of his judgment (see para 10 of the report), namely. "The implication may be that a mtgee. who seeks to redeem a previous mtge. must have a subsisting mtge. in his favour." For myself, I am content not to imply anything into the plain language of Clause (a) of Section 91, T.P. Act.