S. Nathamuni Pillai vs Vengammal and Others

Napier, J.—In my opinion, the view taken by the Muusif and upheld by the District Judge that the right of redemption can only be exercised

on payment of the whole of the mortgage amount is correct. The mortgage-bond, Exhibit A, is perfectly easy to understand. A sum of Rs. 3,000

was borrowed. The property was obviously not of sufficient value to discharge the interest which the mortgagee required from the usufruct and so

the usufruct was to be applied to the payment of only half the interest. With respect to the interest on the balance of Rs. 1,500, the mortgage is

treated as a hypothecation bond and the interest is calculated at one per cent, a month. Then the final provision is that both sums are to be paid in

one lump on the same day, 10 years afterwards, and the bond is entitled ""usufructuary hypothecation bond.

Mr. Ramachandra Aiyar has sought to make two mortgages out of this transaction and suggests that the fact that these two mortgages are

contained in one document does not make any difference. In my opinion it is, as it purports to be, one mortgage with provisions in it which are

rendered necessary by the fact that the whole of the interest chargeable cannot be discharged by the usufruct.

Now the plaintiff seeks to redeem the property. Admittedly he cannot redeem without paying the whole amount that is due; and it is not disputed

that, apart from any question of limitation, the whole amount which he claims is due: but it is said that he cannot be compelled to pay Rs. 1,500

because if the defendant had brought a suit to recover that amount of Rs. 1,500 in respect of what may be called the hypothecation clause of the

document, the suit would be barred.

Reliance is placed on two cases Kesar Kunwar v. Kashi Ram 30 Ind. Cas. 777 : 37 A. 634 : 13 A.L.J. 889 and Athan Kutti v. Matavil Moth

Sutarjanam 37 Ind. Cas. 756 : (1917) M.W.N. 9 : 5 L.W. 461 : 32 M.L.J. 317. I do not think that these cases have any bearing on the narrow

points we have to decide here. In both of them there were two documents and two distinot transactions and to my mind that is a quite sufficient

distinction between those cases and this and it is not necessary for us to consider what would be the position if there were in this case two

documents and to go into the rather difficult subject of consolidation. The short answer to the appellant''s case is that the Limitation Act must be

construed strictly and that limitation is not extinction, except in the particular circumstances of Section 28. Mr. Ramachandra Aiyar has not argued

that Section 28 applies to this case and we do not think that such an argument could be put forward with any chance of success. We are,

therefore, left with Section 3: ""Subject to the provisions contained in sections 4 to 25 every suit instituted shall be dismissed."" Now that is the sole

provision and it is accepted law in this Court, and T think in every other Court in India that the bar of limitation does not operate to discharge. For

this proposition it is only ne3es-sary to quote Subrahmania Ayyar v. Pawan 27 M. 28 and Subramania Aiyar v. Gopala Aiyar 7 Ind. Cas. 898 : 33

M. 308 : 20 M.L.J. 633 : 8 M.L.T. 321. If therefore, the deist is not extinguished and if the sole effect of the Statute is that the mortgagee could

not have brought a suit to recover that amount and if it is provided by Statute that a mortgagor cannot redeem without discharging the whole of the

debt, there is to my mind an end of the contention of the appellant. And this is, I think, the true view of the case. Our attention has been called to

two English cases, one of them specifically dealing with the rights and liabilites of a mortgagor. They are Edmunds v. Waugh (1866) 1 Eq. 418 : 35

L.J.Ch. 234 : 12 Jur. 326 : 13 L.T. 739 : 14 W.R. 257 and Marshfield In re; Marshfield v. Hutchings (1887) 34 Ch. D. 721 : 56 L.J. Ch. 599; 56

L.T. 694 : 35 W.R. 491. The principle stated there, that the limitation of the mortgagee''s right to recover must not be read as a good plea to be

urged by a mortgagor endeavouring to redeem, covers this case and, in my opinion, unless the mortgagee is compelled to bring a suit within the

meaning of Section 3 he is, entitled to set up every claim that he has in law, to support the debt which still remains due.

I would dismiss this appeal with costs.

William Ayling, J.

I agree.