Ramesh Chand vs Brij Mohan Aggarwal

R.L. Anand, J.—The challenge in this Regular Second Appeal is to the judgment and decree dated 9.6.1999 passed by Additional District Judge, Hisar, who affirmed the judgment and decree of the trial Court which decreed the suit of the plaintiffrespondent for possession by way of redemption by holding that the suit is within limitation. Resultantly, the appeal of the defendant was dismissed by holding that the plaintiffmortgagor is entitled to redeem the property on payment of mortgage money together with other amounts as calculated by the learned Civil Judge.

The sole point which requires determination is whether the suit was within limitation or not. Admittedly, the mortgage in dispute was executed on 8.12.1954 and the same was registered on 21.12.1954. The suit was instituted on 11.12.1984. The first appellate Court for the reasons given in paras 20 to 24 of its judgment dismissed the appeal by holding that the suit of the plaintiff was within limitation, and the said reasons are reproduced as under :

"20. A bare reading of the provisions contained under Section 30 shows that in a suit for which the period of limitation is shorter than the period of limitation prescribed in the Indian Limitation Act, 1908 that suit may be instituted within a period of 7 years next after the commencement of the new Act in the year 1963 or within period prescribed for such (sic) by the Indian Limitation Act, 1908 whichever period expires earlier. In the old Act, the period for redemption of mortgage was 68 years but now this period has been decreased and the period of limitation is only 30 years to redeem the property. Reliance may be placed on Palaniswami Gounder (died) and others v. Chinnaswami Gounder and others, AIR 1986 Madras 316, wherein it was held that shorter period of Limitation was prescribed under the new Act as compared to the corresponding provisions under the old Act and, therefore, the suit could be instituted within a period of 7 years next after the commencement of the said Act or within the period prescribed for such suit by the old Act, whichever period expires earlier.

I am in complete agreement with the view taken by the learned trial Court that the respondent has placed reliance on the provisions under Section 30 of the Limitation Act, 1963 but such provisions are of no avail to him as he could have filed the suit for redemption in respect of the mortgaged property in dispute only upto period of seven years from the date of commencement of the said Act of the year 1963, if he was to take the benefit of the earlier period provided under old Act.

Again the controversy boils down to a limited sphere if the mortgagor, who has himself allowed the ordinary period of limitation to expire to seek redemption, can invoke the deferred clause in the mortgage deed to file a suit for redemption of mortgage or not ? According to the mortgagor respondent, he could bring a suit within 38 years (30 years of limitation + 8 years) when the cause of action accrued in his favour to redeem the mortgage. Reverting back to the covenant as of the mortgage deed, we find that the vernacular reads as under :

"Sharyat yeh hai ki jar rahan majkura bala arsa aath sal main adka marke haveli majkura bala ko fakul rahan kra lunga. Aur aath sal tak mikar haveli vagera majkura bala ko khali nahin kra sakega. Aur arsa aath sal tak kul jar rahan majkura bala ka sud wa kiraya brabar rehega. Agar mikar aath sal tak haveli vagera majkura bala fakul rahan naa karaye to char hazar rupaye ka sud wa kiraya barabar rehga. Aur mumlig 2850/ raupaya ka sud bashrah dus anne feesdi mahavar mikar murtahan naai ko ada karne ka jimewar hoga."

The learned counsel for the appellant contended that the words "Aur Aath Sal Tak" have been wrongly mentioned and in fact the words in the original mortgage deed must be Agar Aath Sal Tak. The learned counsel for the appellant further contended that in fact the respondent has placed on record the certified copy of the mortgage deed which certified copy is also not prepared correctly and the word "And" (aur) has been written while preparing the certified copy and in fact in the original mortgage deed this word must be "Agar". The learned counsel for the appellant contended that there is a condition in the mortgage that if the mortgagor will not be able to get the property in question redeemed within a period of eight years then the interest and rent for that period shall be equal and there is no clause in the mortgage deed which would provide that the mortgagor shall not be able to get the mortgage redeemed for a period of 8 years. Therefore, there is no clause which could impose a clog on the equity of redemption and the respondent has in fact wrongly interpreted the law and the mortgage deed and the mortgage deed cannot be termed as illegal and void as has been contended by the respondent.

Reference may be made to Parma Nand v. Babu Ram, AIR 1986 Punjab and Haryana 233 (supra), wherein it was held that "a suit filed by a mortgagor shall be considered as within limitation if he allowed the normal period of limitation to expire but filed a suit on the basis of deferred date of redemption."

Mr. Jain, the learned counsel for the appellant invites my attention to the operative portion of the mortgage deed and submits that in this case there was no clog created in the mortgage for the mortgagor and for this reason the suit could only be instituted within 30 years and the limitation will start from the date of the mortgage itself and, therefore, the suit is barred by limitation. In support of his contention the learned counsel for the appellant relies upon Sampuran Singh and others v. Smt. Niranjan Kaur and others, AIR 1999 SC 1047 : 1999(2) RCR(Civil) 203 (SC), wherein it was held as follows :

"The period of limitation starts the very first date of a valid mortgage. Court has only to see whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restrain in the mortgage deed is provided specifying restriction under it. Mortgages (Punjab) Act, 1913 was only brought in, as under Section 7(5) of the Punjab Alienation of Land Act, as subsequently amended in 1907, the Deputy Commissioner has, in the case of mortgages made under Section 6 of that Act, certain powers to restore mortgagors to possession of their property was provided, therefore, 1913 Act was passed to confer similar powers in respect of other mortgages not covered under Section 6. This also provides for a summary procedure in the matter of redemption of mortgages. This has no corelation with the period of limitation in case of redemption of mortgages. In the instant case the land was mortgaged by oral mortgage in the year 1893. The suit for redemption was filed in the year 1980. The plea that in an oral mortgage, till the 1913 Act came into force there was no period of limitation and the right for redemption accrued only after this Act came into force, hence limitation cannot start before the date when this Act came into force would not be tenable. In any case, even from the date of this Act, viz. 1913, the period of limitation expires on 1973 hence the suit still is barred by time.

It cannot be said that right to redeem only accrue when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the unsufruct from the land. The language in Article 61 makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exists a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, the period of limitation would start from the very date the valid mortgage is said to have been executed, hence the period of limitation of 60 years would start from the very date of oral mortgage that would be from March, 1893."

The learned counsel for the appellant also relies upon Thakur Kishan Singh (dead) v. Arvind Kumar, 1995(1) R.R.R. 561 : 1995 A.I.R. (SC) 73 : 1998 HRR 57 and submits that a registered document does not operate from the date of the registration but from the date of the execution.

The argument raised by the learned counsel for the appellant is acceptable to this Court only to a limited extent that the registration of the document will relate back to the date of the execution. However, this Court is not in a position to agree with the learned counsel for the appellant that the suit of the plaintiffrespondent was beyond limitation. A document has to be interpreted as a whole and has to be read as a whole. The relevant clause of mortgage has already been reproduced above, which clearly indicates that a clog was created upon the predecessor of the plaintiff that he will not be able to get the property redeemed for a period of 8 years. The mortgage was with possession. During this period of 8 years interest and rent will be considered at par. In case the plaintiff does not get the property redeemed within 8 years, then the mortgagor would pay a sum of Rs. 2,850/ by way of interest and interest visavis the amount of Rs. 4,000/ shall be at par. Meaning thereby the cause of action will arise to the mortgagor after a lapse of 8 years and not prior to that. In this view of the matter, if 30 years are counted from 8.12.1963, the suit of the plaintiff could be instituted upto 8.12.1993. In these circumstances I endorse the view taken up by the Courts below and hold that the suit of the plaintiff was within limitation.

Resultantly, I do not see any illegality or impropriety in the impugned judgments. There is no merit in this appeal and the same is hereby dismissed in limine.