Ramprichhan Singh and Others vs Ram Chhabila Singh and Others

Nagendra Prasad Singh, J.—The defendants are the appellants in this Second Appeal. The Plaintiff-respondent filed the suit in question for redemption of a mortgage bond dated 6-11-1937 executed by one Lal Bahadur Singh, father of defendant No. 1, in favour of one Bindeswar Singh, ancestor of defendant-second party.

According to the case of the plaintiff, said Lal Bahadur Singh executed a sale deed on 11-9-1959 transferring the eouity of redemption in respect of the aforesaid mortgage bond in favour of the plaintiff for a consideration of Rupees 2,000/- (rupees two thousand). Later, he refused to register the deed of sale. Ultimately, the plaintiff had to file a title suit (title suit No. 143 of 1960) in the court of Munsif, Chapra. The said suit was decreed in favour of the plaintiff and on 22-8-1963 the sale deed was registered as per direction given in the judgment of the suit aforesaid. An appeal was filed by the aforesaid Lal Bahadur Singh which was dismissed as having abated. Thereafter, a civil revision application was filed on behalf of his heirs which was dismissed by this court on 3-7-1970.

Oh the basis of the aforesaid sale deed dated 11-9-1959 the plaintiff filed the present suit for redemption of the lands mortgaged under the deed of 6-11-1937, on 29-4-1971. This suit for redemption was contested by the mortgagees i.e. the heirs of aforesaid Bindeshwar Singh. The main ground of defence appears to be that the suit was barred by limitation as due to lapse of time the equity of redemption has been extinguished.

Under the Limitation Act of 1908 the period prescribed for redemption of a mortgage bond was sixty years. However, under the new Limitation Act of 1963 under Article 61 this period was reduced to thirty years. This period of thirty years is to be reckoned "when the right to redeem or to recover possession accrues". Section 30 of the new Limitation Act prescribes that whenever the period of limitation for any suit is shorter under the new Act from one provided under the old Act such suit may be instituted within a period of seven years next after the commencement of this Act. The effect of aforesaid Section 30 will be that the suit for redemption in the instant case could have been filed within seven years from 1-1-1964 when the new Limitation Act came into force; in other words on or before 31st December, 1970. However, the present suit was filed on 29-4-1971.

It appears that the courts below have held that the suit in question was not barred by limitation because in the facts and circumstances of the instant case the right to sue accrued to the, plaintiff only after dismissal of the civil revision filed before this court on 3-7-1970 after which the decree for compulsory registration became final. The learned counsel appearing on behalf of the appellants challenged this finding and has submitted that in the facts and circumstances of the case it should be held that the suit was barred by limitation.

In view of Article 61 of the new Limitation Act, a suit for redemption or for recovery of possession of the immovable property mortgaged must be filed within thirty years from the date the right to redeem or to recover possession accrues. In the mortgage bond dated 6-11-1937 the period for redemption was mentioned as 30th Jaistha 1347 Fasli (30th June 1940). Now thirty years since this date will be some time in June, 1970. However, applying Section 30 of the Act it shall be on or before 31st December. 1970.

There cannot be any dispute that if the suit for redemption was to be filed on behalf of the mortgagor i.e. Lal Bahadur Singh or his heirs it had to be filed on or before 31st December, 1970. But the question is whether in case of the plaintiff a fresh period of thirty years shall commence either from 22-3-1963 when the deed in question was registered in his favour by the order of the court or from 3-7-1970 when the decree passed in the title suit aforesaid became final by dismissal of the civil revision by this court. I have already pointed out that the court below has held that the plaintiff was entitled to a fresh period of limitation of thirty years after the dismissal of the civil revision by this court. It is difficult to accept this view. The period prescribed for redemption of a mortgage bond cannot differ with the transfer of the equity of redemption from person to person. If this construction is put to the expressions "when the right to redeem or to recover possession accrues" it will lead to an absurd result. As a necessary corollary it has to be held that with every transfer of equity of redemption on or about the expiry of the period of thirty years a fresh period of limitation shall start so far the transferee of such equity of redemption is concerned. Apart from that if the right of redemption has been extinguished so far the mortgagor is concerned how it can be conceived that the same right shall subsist so far the transferee of that right from such mortgagor is concerned. It is well settled that no person can convey a better right than one which he himself possesses. In my opinion, the court below was in error when it held that so far the plaintiff is concerned the limitation was started from 3-7-1970 when the civil revision arising out of the suit for compulsory registration was finally dismissed by this court. It is an unfortunate case where the plaintiff could not reap the harvest of his endeavour. Having fought out the suit for compulsory registration since 1960 the right which he wanted to acquire was extinguished by lapse of time. I am unable to appreciate as to why the suit in question was not filed on behalf of the plaintiff between the period 22-8-1963, when the deed in question was registered by the order of court, and 31-12-1970, when the period of seven years contemplated by Section 30 of the Act expired. Any way the plaintiff has to bear the consequences for this default.

In the result, the appeal is allowed and the judgments and decree passed by the courts below are set aside. The suit of the plaintiff is dismissed as time barred. In the facts and circumstances of the case, however, there shall be no order as to costs.