Shyam Lal and others . vs Nathi and another

J.V. Gupta, J.

This is plaintiffs'' second appeal whose suit for possession by way of redemption was decreed by the trial Court but has been dismissed in appeal.

Bal Mukand mortgaged the shop in dispute in favour of Kundan Lal for Rs. 99/ under the mortgage deed dated 23.7.1909 which is Exhibit PX. Shyam Lal and others, plainitffappellant, claimed themselves to be the grandsons of Bal Mukand and had thus a right to redeem the mortgage. The defendants Nathi and Charanji were described to be the sons of Kundan Lal original mortgagee. Under the circumstances the plaintiffs claimed a decree for redemption of the mortgaged shop on payment of such mortgage debt which might be found due to them from the mortgageedefendats. In the written statement, the defendants admitted the factum of mortgage of the shop but denied the other allegations contained in the plaint. They pleaded that the suit was time barred and that they had spent a sum of Rs. 4,000/ on the improvement of the disputed shop. The trial Court bound that the suit filed on 4th November, 1970 was within time and the plaintiffs were entitled to redeem the property on payment of Rs. 198/. Consequently, the plaintiffs'' suit was decreed. In appeal, the learned Additional District Judge reversed the finding of the trial Court on the issue of limitation. It came to the conclusion that the suit was instituted after the prescribed period of limitation for the redemption of the mortgage. The findings of the trial Court on other issues were affirmed. Consequently, the plaintiffs'' suit was dismissed. Dissatisfied with the same, the plaintiffs have come up in second appeal in this Court.

Leaned counsel for the appellants contended that according to the terms of the mortgage deed, the mortgagor would pay the total mortgage debt to the mortgagee within 5 years and redeem the mortgaged shop. If he fails to pay the mortgaged debt within 5 years, the disputed property would be treated as sold to the mortgagee for the same amount. Thus, according to the learned counsel, the limitation for redemption will start after 5 years from the date of mortgage and from that period the suit is within limitation.

However, it is common case of the parties that if the limitation starts after 5 years from the date of mortgage, then the suit is within limitation.

Learned counsel for the appellants mainly relied upon Smt. Gulkandi and others v. Harnarayan Phool Chand and others, A.I.R. 1980 Madhya Pradesh 111, to support his contention. It was held therein that where the deed of mortgage with possession prescribed the duration of mortgage as one year, the limitation for suit for redemption would commence on the expiry of that period and not from the date of execution of the mortgage in the absence of any contract to the contrary as the right of the mortgagee to sue the mortgagor and ask him to repay the amount of loan with which the right of the mortgagor to redeem is coextensive, arose then. It was further held therein that Article 148 of the Old Limitation Act read with section 60 of the Transfer of Property Act indicates that the right to redeem accrues to the mortgagor at any time after the principal money had become due. Reference was also made to Mohammad Khan v. Mohammad Salim Khan, A.I.R. 1951 Allahabad 392 to further support his contention. No judgment taking the contrary view has been cited at the bar on behalf of the respondents. Thus relying upon the ratio of the judgment in Smt. Gulkandi''s case (supra) the limitation for filing the present suit for redemption will begin after 5 years from the date of the mortgage. Thus the suit filed on 4th November, 1970 was within limitation from that date. As such the trial Court rightly found that the suit was within limitation and the lower appellate Court reversed the said finding arbitrarily.

Consequently, this appeal succeeds, the judgment and decree of the lower appellate Court are set aside and that the trial Court decreeing the plaintiffs'' suit is restored with cost.