Rajasundaram and Others vs C. Thayamma

B. Rajendran, J.—The second appeal arises out of the order passed in a final decree application in a suit for redemption of mortgage. The

suit in O.S. No. 655 of 1981 was filed by G. Kochuraman Nadar and six others. During the pendency of the final decree proceedings, the said

Kochuraman Nadar died and his legal heirs have been brought on record as Plaintiffs 8 to 12 on 07.02.2003.

The application in I.A. No. 220 of 1999 in O.A. No. 655 of 1981 was filed seeking for passing a final decree on the basis of the preliminary

decree and the same was allowed on 24.06.2003. Aggrieved against the same, the respondent in the application/sole defendant in the suit filed an

appeal in A.S. No. 75 of 2003 and the appeal was allowed on 28.03.2005 reversing the fair and decreetal order dated 24.06.2003 in I.A. No.

220 of 1999. Aggrieved against the same, the petitioners in the final decree application have come forward with the present second appeal.

According to the plaintiffs/appellants, in the suit for redemption, a preliminary decree was passed as early as on 16.08.1983. The trial Court

directed the plaintiffs to deposit Rs. 750/- on or before 16.10.1983. Against the said order, the sole defendant in the suit filed an appeal in A.S.

No. 133 of 1983 and the appeal was ultimately dismissed on 28.02.1992. Thereafter, the sole defendant preferred a second appeal before this

Court in S.A. No. 912 of 1992 which was also dismissed on 12.04.1996. Thereafter, the plaintiffs have deposited the amount on 23.03.1999 and

filed the application in I.A. Nos. 220 of 1999 seeking to pass a final decree in terms of the preliminary decree and it was allowed on 24.06.2003.

Aggrieved by the same, the sole defendant filed A.S. No. 75 of 2003 before the first appellate Court and it was allowed on 28.03.2005. As

against the same, the present second appeal has been filed by the plaintiffs in the suit.

The main contention putforth by the learned counsel for the plaintiffs/appellants is that even though the trial court directed them to deposit the

amount on or before 16.10.1983, they could not make the deposit inasmuch as the defendant/respondent herein has filed A.S. No. 133 of 1983

and on its dismissal, she has filed Second Appeal before this Court in S.A. No. 912 of 1992. Therefore, only after dismissal of the second appeal

on 12.04.1996, the plaintiffs could deposit the amount on 23.03.1999. In any event, the final decree application in I.A. No. 220 of 1999 was filed

within three years from the date on which this Court dismissed the second appeal filed by the defendant/respondent namely 12.04.1996 and

therefore the application has been filed within time. It is further argued that the delay in payment of money within two months from the date of

passing of the preliminary decree is immaterial as the mortgage in question is only a usufructuary mortgage. When it is a usufructuary mortgage,

there is no period prescribed for payment of money and the period of limitation will commence only from the date of deposit. In this case, the

plaintiffs/appellants have deposited the amount within three years from the date of judgment of this Court in the second appeal preferred by the

respondent/defendant. It was also brought to the notice of this Court that this Court initially granted an interim stay in the second appeal and it was

later made absolute on 27.08.1992 and therefore, even during the pendency of the second appeal, the plaintiffs/appellants could not deposit the

money in view of the order of interim stay granted by this Court. In any view of the matter, as per the various orders passed by this Court as well

as the Honourable Supreme Court, there is no time limit prescribed for deposit of money in so far as usufructuary mortgage is concerned.

In this connection, the learned Counsel for the Plaintiffs/Appellants would rely upon the decision of the Hon''ble Supreme Court reported in

Achaldas Durgaji Oswal (Dead) through Lrs. Vs. Ramvilas Gangabisan Heda (Dead) through Lrs. and Others, and also an unreported judgment

of this Court made in S.A. No. 371 of 2011 dated 16.07.2012. He would further rely upon the judgment of the High Court of Himachal Pradesh

reported in Bhandaru Ram (deceased) through his L.R. Rattan Lal Vs. Sukh Ram and Others, for the proposition that when deed of mortgage is

silent on the date of repayment then the period of limitation starts only on the date when money is paid. He would also rely upon a decision of the

Supreme Court reported in Harbans Vs. Om Prakash and Others, for the proposition that no period is stipulated for redeeming the mortgage and

no period could be stipulated for redeeming a usufructuary mortgage. Relying on the aforesaid decisions, the learned counsel for the

plaintiffs/appellants would contend that the period of limitation commences only from the date of deposit especially when it is a case of usufructuary

mortgage. Therefore, according to the learned counsel for the plaintiffs/appellants, the question of limitation will not arise in this case. However, the

lower appellant Court has erroneously came to the conclusion that the payment was made beyond the time and therefore, the plaintiffs/appellants

could not be permitted to enjoy the fruits of the preliminary decree passed in their favour.

Contra, the learned Counsel for the defendant/respondent would argue that if we read the mortgage in toto, it cannot be construed to be a

usufructuary mortgage but, it is an anomalous mortgage. According to the learned counsel for the defendant/respondent, the recital in the mortgager

indicate that ''in the event of failure to pay, they will also be personally held responsible to pay the amount''. The word ''personally responsible''

would indicate that it is not a usufructuary mortgage besides that the defendant/respondent is empowered to bring the property covered under the

mortgage for auction or sale. Therefore, the recitals in the mortgage would automatically take the character of the mortgage as a anomalous

mortgage and therefore, the period of Limitation prescribed u/s 67 of Limitation Act will apply. Therefore, the learned counsel for the

defendant/respondent would mainly contend that the first appellate Court is right in holding that the payment of money is beyond the period of

limitation. The learned counsel for the defendant/respondent would contend that during the pendency of the first appeal, there was no operation of

interim stay and therefore, the plaintiffs/appellants could have deposited the money but they failed to do so.

The learned counsel for the defendant/respondent relied on the decision of this Court reported in Thankamma and Others Vs. Santhakumari

Amma and Another, , to drive home the point that the word ''Otti'' means anomalous mortgage only. He also relied on the decision of the Kerala

High Court reported in AIR 1991 Kerala 111 (K. Kunjamma and others v. Bhageerathy Amma Gomathy Amma) to contend that period for

payment of deposit has to be calculated from the date on which it was directed to be deposited by the trial court. Therefore, the learned counsel

for the defendant/respondent would contend that lower appellate Court is correct in coming to the conclusion that the application for final decree

application is barred by limitation.

Heard both parties. At the time of admission, the following questions of law were framed for consideration by this Court.

(1) Whether the judgment and decree of the lower appellate Court, holding that the final decree petition is barred by law of limitation, are

sustainable in the circumstances of the case?

(2) Whether the receipt of mortgage amount by the trial Court amounts to extension of time?

(3) Whether the mortgage amount deposited after 30 years of mortgage will debar the plaintiffs from getting the final decree passed in a

redemption suit?

Though three questions of law have been framed by my predecessor, today, at the time of argument of this appeal, the learned counsel for both

sides fairly submitted that the only question of law for consideration of this Court is whether the final decree application has been filed in time or

not. In other words, only the question of limitation was agitated by counsel for both sides.

Before dealing with the rival submissions, it is necessary to note down certain important dates and events in this case. The date of mortgage is

19.07.1957. Under normal circumstances, the period for redemption of mortgage is thirty years. When we read the mortgage deed, though it is in

Malayalam, a translated copy has been filed and both parties have admitted to the terms of the mortgage deed after translation. From the terms of

the mortgage deed, it is seen that the word ""otti"" is mentioned. ""Otti"" in the normal parlance will denote usufructuary mortgage or an anomalous

mortgage. The learned Counsel for the defendant/respondent would submit that as per the custom prevailing in that area ""otti"" also would mean and

include an anomalous mortgage deed.

Contra, the learned Counsel for the plaintiffs/appellants relied upon an unreported judgment of this Court made in S.A. No. 371 of 2011 dated

16.07.2012 and argued that in the above case the very same Counsel (Mr. K.N. Thambi) appeared and argued by relying on the various decisions

of the Kerala High Court to contend that ""Otti"" in that particular case is of Kerala origin and it will also denote usufructuary mortgage deed. It is

further submitted by the learned counsel for the plaintiffs/appellants by making such submission, the learned counsel for the defendant/respondent

succeed in that second appeal. The learned counsel for the plaintiffs/appellants also taken me to the recitals in the mortgage deed to show that the

possession of the lands covered under the mortgage deed has been handed over pursuant to the execution of ""otti"" deed and the plaintiffs/appellant

are not liable to pay interest so long as they continue in possession.

A perusal of the mortgage deed, Ex. A1 dated 19.07.1957 would indicate that in the last line of the mortgage, there was a recital to the effect

that the plaintiffs/appellants will also be personally held responsible in the event of their failure to pay the mortgage amount. The very inclusion of

the word ''personally responsible'' cannot be attributed to the effect that the permission to sell also has been given to the defendant/respondent.

What was stated or what was intended by the parties to the ''otti'' deed was at the expiry of the period of mortgage, the plaintiffs/appellants have to

either hand over the possession of the land or pay back the mortgage amount. Therefore, it cannot be construed as an anomalous mortgage it is

only an usufructuary mortgage. When it is an usufructuary mortgage, the rules are different. It is well settled by series of decisions of this Court as

well as the Hon''ble Supreme Court that in a redemption of suit even if time for deposit was fixed and default was committed in depositing the

amount, still, the mortgagor is not debarred from exercising his right to redeem the mortgaged property.

In this case, the plaintiffs/appellants have filed the suit for redemption in O.S. No. 655 of 1981 and the same was decreed on 16.08.1983 with

a direction to the plaintiffs to deposit the amount of Rs. 750/- on or before 16.10.1983. Against which, the defendant/respondent preferred an

appeal in A.S. No. 133 of 1983 and the appeal was dismissed on 28.02.1992. Aggrieved against the dismissal of the appeal, she has filed Second

Appeal in S.A. No. 912 of 1992 and the same was also dismissed on 12.04.1996 by this Court. Now, it is the contention of the

defendant/respondent that when the plaintiffs/appellant failed to remit the amount within the time stipulated by the trial court, before 16.10,1983,

they are not entitled to enjoy the fruits of the preliminary decree.

It is seen from the records that in the first appeal filed by the defendant/respondent, there was no interim stay granted, however, pending

second appeal, there was an interim stay and it was subsequently made absolute by this Court. Therefore, it is contended on behalf of the

defendant/respondent that the period during which interim stay was in operation between 27.08.1992 to 12.04.1996 alone has to be excluded and

even if it is excluded, the plaintiffs/appellants are guilty of non-payment of the amount in time. Such a contention of the defendant/respondent

cannot be countenanced. When an appeal is pending adjudication, the plaintiffs/appellants cannot be expected to remit the amount. However,

immediately after dismissal of the second appeal, the plaintiffs/appellants have filed I.A. No. 220 of 1999 on 24.03.1999.

It is contended on behalf of the plaintiffs/appellants that the amount has been deposited after 30 years from the date of original mortgage i.e.

19.07.1957 and the plaintiffs ought to have deposited the amount within 30 years i.e. on 19.07.1987. Even if the period during which interim stay

was in operation for a period of about 31/2 years is excluded, still, the plaintiffs/appellants ought to have deposited the amount atleast in the year

1991 or 1992. Therefore, according to the counsel for the plaintiffs/appellants, the amount has been deposited belatedly thereby the

plaintiffs/appellants are disentitled to redeem the mortgage.

With these background, the questions of law involved in this second appeal has to be analysed. As pointed out above, admittedly, the

mortgage in this suit is a usufructuary mortgage. When it is usufructuary mortgage, then the rules are different. In this connection, a three Judges

Bench of the Supreme Court in Achaldas Durgaji Oswal case (cited supra) has categorically held that mortgagee is entitled to possess the property

in question till the final decree of redemption is passed even though there is failure on the part of the mortgagor to deposit the mortgaged amount

within the time stipulated in the preliminary decree. The limitation for drawing up the final decree will begin to run from the date of deposit made

and any application filed within three years from the date of deposit for a usufructuary mortgage for passing of the final decree is not time barred. In

this connection, the relevant portion of the judgment is extracted as under:

A bare perusal of the aforementioned provisions would clearly show that sub-clause (ii) has no application in relation to usufructuary mortgage.

Sub-rule (2) of Rule 7 of Order XXXIV empowers the Court to extend the time fixed for payment. Rule 8 of Order XXXIV provides for final

decree in redemption suit. The right of the mortgagor to file an application for passing a final decree has been provided in the manner laid down

therein,

The statutory provisions, as noticed hereinbefore, are required to be construed having regard to the redeeming features of usufructuary

mortgage, namely, (a) there is a delivery of possession to the mortgagee, (b) he is to retain possession until repayment of money and to receive

rents and profits or part thereof in lieu of interest or in payment of mortgage money, or partly in lieu of interest and partly in payment of mortgage

money, (c) there is redemption when the amount due is personally paid or is discharged by rents or profits received (d) there is no remedy by sale

or foreclosure.

Order XXXIV, Rules 7 and 8 do not confer any right upon the usufructuary mortgagee to apply for final decree which is conferred on

mortgagee on other types of mortgages. By reason of sub-rule (1) of Rule 8 of Order XXXIV, a mortgagor is entitled to make an application for

final decree at any time before a final decree debarring the plaintiff from all rights to redeem the mortgaged property ahs been passed or before the

confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of this rule. No such application is again contemplated at the

instance of the usufructuary mortgagee. By reason of sub-rule (1) of Rule 8 of Order XXXIV, a right of redemption is conferred upon the

mortgagor of a usufructuary mortgage. Such a provision has been made evidently having regard to the right of redemption of a mortgagor in terms

of Section 60 of Transfer of Property Act and further having regard to the fact that a usufructuary mortgagee would be entitled to possess the

property in question till a final decree of redemption is passed.

The right of redemption of mortgagor being a statutory right, the same can be taken away only in terms of the proviso appended to Section 60

of the Act which is extinguished either by a decree or by act of parties. Admittedly, in the instant case, no decree has been passed extinguishing the

right of the mortgagor nor such right has come to an end by act of the parties.

The learned counsel for the defendant/respondent also referred to the decision reported in R. Vijayakumar Vs. The Official Liquidator High

Court Madras as the Provisional Liquidator of M/s. RBF Nidhi Limited , High Court Madras as the Provisional Liquidator of RBF Nidhi Limited)

wherein a Division Bench of this Court, in which I was a party, held that Article 137 of the Limitation Act would apply for filing the application to

pass final decree in a suit for redemption of mortgage deed. As the above case arises out of simple mortgage, we have categorically held that

Article 137 of the Limitation Act would apply because after getting preliminary decree for redemption of the mortgage, mortgagor cannot sleep

over the matter. Therefore, in the present case, we have held that admittedly it is usufructuary mortgage. Therefore, the above said citation relied

upon by the learned Counsel for the respondent will not applicable to the facts of the resent case taking into consideration that it is usufructuary

mortgage.

In this connection, the learned Counsel for the appellants relied another Division Bench judgment of this Court reported in Sappani

Mohammed Labbai Vs. Abdulla Syed through Power of attorney Agent Ameena Bibi, wherein this Court has discussed in detail regarding the

word used as usufructuary mortgage, wherein a distinction was made on the basis of the recitals contained in the document following the earlier

judgment reported in AIR 1933 Madras 613 in which it was held that an undertaking by the mortgagor to pay the money in an usufructuary

mortgage would not make it a personal covenant if added to there is an indication about the time and the mode of redemption and in such a case,

the sale of mortgaged property cannot be ordered. It is useful to extract the relevant portion of the above judgment which reads as under:

11...What he contends is that if the words had not been used, then there would have been no personal covenant, and in which event, no doubt it

would be an usufructuary mortgage, as claimed in the plaint.

The Learned Counsel for the respondent also again relied upon the judgment reported in K. Kunjamma and Others Vs. Bhageerathy Amma

Gomathy Amma and Others, for the proposition that the delay in filing the application for final decree will not enure to the benefit of the plaintiffs.

Even in this case, it has been held that Article 137 of the Limitation Act is not applicable for such deposit whereas it is applicable only in case of

application presented under Order VIII for passing final decree. In this case application has been filed within three years of such deposit. In this

case the final decree application was filed along with the deposit. Once the Court has already directed to receive the amount and it has also

acknowledged the amount within the extended period of time, it has to be held that the amount is deposited within the period prescribed by the

Court. Therefore, the deposit with the final decree application within three years from the date of deposit is legally valid. The learned Counsel for

the appellants relied on the decision of the Honourable Supreme Court reported in Harbans Vs. Om Prakash and Others, . In that case, following

the earlier judgment reported in Seth Ganga Dhar Vs. Shankar Lal and Others, the three Judge Bench of the Supreme Court held that there is no

limitation for redeeming mortgage deed. In that case before the Honourable Supreme Court, even though the time was fixed as 85 years, when it is

sought to be redeemed, the Court came to rescue of the mortgagor. Similarly, in this case, extension was granted by this trial court for payment of

money and the amount was also paid. Therefore, the right of redemption cannot be taken away especially after the payment was made before the

trial Court and question of limitation raised by the defendant/respondent does not arise. Resultantly, the questions of law are answered in favour of

the plaintiffs/appellants. In any view of the matter, as per the judgment of the Supreme Court reported in Achaldas Durgaji Oswal (Dead) through

Lrs. Vs. Ramvilas Gangabisan Heda (Dead) through Lrs. and Others, , mentioned supra, the Second Appeal is allowed setting aside the judgment

and decree dated 28.03.2005 made in A.S. No. 75 of 2003 on the file of the learned Subordinate Judge of Padmanabhapuram. No costs.