Velayuthan Pillai Neelakanta vs Mathavan Pillai Mathevan Pillai

Anantanarayanan, J.—This appeal involves a question of some interest which could be tersely stated in the following form, namely, whether

a subsequent suit for redemption of a mortgage would be barred by limitation or application of the principle of res judicata, where, in a prior suit

for redemption between the same parties it had been heard and decided that that suit was time-barred with reference to Article 148 of the

Limitation Act. The question, in this particular form, does not appear to have been advanced in any of the decisions in the extensive case-law that

has been cited before us. The facts essential for an appreciation of the setting in which the question has arisen are simple, and may be stated as

follows :

The property in question belonged to one Esakki Udayamma, who executed a mortgage in respect thereof on 9-4-1058 (M. E.) in favour of

Kesavan Padmanabhan. A second mortgage also came into existence on 21-4-1082 (M. E.) in favour of a certain Adichan. Esakki Udayamma,

later sold the property on 21-9-1082 (M. E.) to Parvathi Kochu, with a direction to the vendee to redeem the earlier mortgage in favour of

Kesavan Padmanabhan. Adichan, the subsequent mortgagee, filed a suit on the foot of his mortgage (O. S. No. 64 of 1093 M. E. of the District

Munsif Court of Padmanabhanpuram) to which suit Parvathi Kochu had been impleaded as a party. There was a decree in favour of the

mortgagee, and the property was sold in execution and purchased in court auction by one Narayana Pillai. who also took delivery of the hypotheca

through court. Subsequently, this Narayan Pillai sold the property on 14th July 1118 (M. E.) in favour of Neelakanta Pillai, the plaintiff in the

present action, and the appellant before us. Parvathi Kochi was succeeded by another, with respect to her right, and this individual conveyed her

interest in the property in favour of Madhavan Pillai in 1116 M. E.

Neelakanta Pillai (plaintiff) filed O. S. No. 1060 of 1118 M. E. (District Munsif Court, Padmanabhapuram) to redeem the mortgage dated 9-4-

1058, impleading Madhavan Pillai, the vendee from Parvathi Kochu, as defendant. It was in this suit that the defendant raised the plea that the suit

was barred under Article 148 of the Limitation Act, being beyond the period of limitation reckoned from the earliest date upon which the suit for

redemption could be brought. The suit was decreed, and an appeal to the District Court of Nagarcoil failed. There was a second appeal to the

High. Court of Travancore-Cochin (S. A. No. 357 of 1124) which, was allowed dismissing the suit, and Neelakantan Pillai (plaintiff) filed an

application for review of the judgment and decree in S. A. No. 357 of 1124, which equally failed.

As the plea of res judicata arises primarily with regard to these anterior proceedings, it is of some importance to appreciate how the question of

limitation was earlier decided. The following passage in the judgment of Koshi, C. J., in S. A. No. 357 of 1124 (M. E.) may be appropriately

extracted here :

He (Advocate General) however argued that the release by the mortgagee to the mortgagor''s vendee (Kochu) must necessarily contain an

acknowledgment and as that was round about 1082 (M.E.) the suit brought in 1118 (M.E.) was well within time. Except for this statement at the

Bar, nobody ever cared to produce the release deed in court or to amend the plaint so as to incorporate this ground of exemption into it. The

learned Advocate General/ requested that his client may be put on terms and the suit remanded to the trial court for fresh trial, so the plaintiff may

get an opportunity to prove hat the suit was brought within time ......... Even now the release deed has not been produced in court, nor has the

plaintiff made any application by means of a verified petition alleging that there has been an acknowledgment within the statutory period. No Court

can remit a suit for fresh trial for the purpose of a roving enquiry to find out whether there has been an acknowledgment within the specified period.

The request for remand does not amount to anything more than such a request and I cannot find my way to agree to it ............ In the absence of

averments or proof, that there has been a valid acknowledgment within the statutory period, the suit for redemption brought beyond that period has

necessarily to be dismissed.

As we have stated earlier, the proceeding instituted in the same court for review of this judgment and decree equally failed. The petition for

review stressed that the release document was mentioned in paragraph 2 of the plaint, and admitted in the written statement and that this was

adequate justification for indulgence in respect of proof of the ground of exemption from the bar of limitation. However this might be, we cannot

now be concerned either with the merits of the judgment in the second appeal, or the merits of the dismissal of the review petition. But the fact has

to be made clear that, in the prior suit, the precise ground of exemption from the bar of limitation, namely, the release deed embodying the

acknowledgment, which is now sought to be relied upon, was advanced; and negatived on the merits. This must be made clear, for the reason that

Explanation IV to Section 11 C. P. C. appears to have been mistakenly invoked, at a certain stage of the present litigation. Actually, there is no

question of ""constructive"" res judicata in the case, and what was decided in the prior suit was that the acknowledgment relied upon failed in proof,

and could not be accepted as saying the bar of limitation.

In the present suit for redemption, the trial court and the first appellate court held that the suit was not barred, and that a decree for redemption

could be granted. In S. A. No. 702 of 1959 Jagadisan J. took a different view, and after a discussion of the case-law, came to the conclusion that

the suit was clearly and definitely barred by limitation, because of the operation of the principle of res judicata, the prior suit itself having been held

barred on that identical ground of limitation. The question is whether this view is in consonance with the authorities, and ought to be upheld.

As is well known, Section 60 of the Transfer of Property Act enacts the rights and liabilities of the mortgagor with regard to redemption and

further specifies that the right may be enforced at any time, within the total period of limitation, ""provided that the right conferred by this section has

not been extinguished by the act of parties, or by decree of a court"". Subject to this qualification, the right to redeem has always been construed as

a recurring right de die in diem, subject also, of course, to Article 148 of the Limitation Act which prescribes the total period within which

redemption could be obtained at the hands of court as 60 years from the earliest time when the right to redeem accrues. The main argument of Mr.

T. M. Krishnaswami Aiyar for the appellant can be expressed in the following form. The recurring right is statutorily enacted and embodied in

Section 60 of the Transfer of Property Act, as aforesaid, it is consequently unaffected by the principle of res judicata enacted in Section 11 C. P.

C., being a special procedure for redemption recognised and provided for by the Legislature. Consequently, if the present suit is actually barred

under Article 148 of the Limitation Act, the learned counsel concedes that the plaintiff (appellant) should be non-suited. But he cannot be non-

suited by virtue of the operation of the principle of res judicata, because in a prior suit it was held that the suit was beyond the period of 60 years

(50 years in Travancore Cochin State at that time). It is even now open to the plaintiff (appellant) to prove the release deed containing the

acknowledgment, and successfully to maintain the present action within the extended period of limitation thus obtained.

The answer to this question depends on an appreciation of the true trend of the case law on this aspect, which does certainly exhibit a course of

evolution. For this reason the case law has to be analysed, but we are unable to agree with the interpretation of it will perceive a conflict of

decisions therein. In our view, there is really no such conflict, and the case-law certainly does not justify any wide generalisation that suits for

redemption are a class apart, altogether outside the scope of the principle of res judicata. But, in view of the arguments advanced before us, it

becomes necessary to begin the analysis from a very early stage of the precedents on this subject.

In Nainappa Chetti v. Chidambaram Chetti, ILR 21 Mad 18, this court held, firstly, that where there was no decree for foreclosure in the

previous suit, a subsequent suit for redemption would not be barred by limitation. But secondly, it was equally held that findings in the previous suit

as to the amount of the debt and the extent to which it bound the estate would be res judicata. The question came up in a crystallized form in

Vedapuratti v. Vallabha Valiya Raja, ILR 25 Mad 300 whether, even assuming that the relationship of mortgagor and mortgagee subsisted, a

subsequent suit for redemption would not be maintainable, where a decree for redemption had been passed in the prior suit, but had not been

executed within the period of limitation prescribed for such execution. In holding that such a subsequent suit would be barred, Bhashyam Aiyangar

J. referred to the observations of Baron Parke in King v. Hoare, 13 M & W 494,

The judgment is a bar to the original cause of action, because it is thereby reduced to a certainty and the object of the suit attained, so far as it can

be at that stage, and it would be useless and vexatious to subject the defendants to another suit, for the purpose of attaining the same result. Hence

the legal maxim ''transit in rem judicatam''.

Bhashyam Aiyangar J. there observed,

In considering whether the plea of res judicata operates as a bar to the suit, the question is not whether the alleged relation of mortgagor and

mortgagee or any other legal relation between the parties to the suit subsists, but whether, assuming the same to subsist, the plaintiff is not

precluded from seeking to enforce his right by reason of his having already sued upon the same cause of action and obtained an adjudication which

it was competent for him to enforce and execute ............ But a person who has obtained a decree establishing his right and entitling him to the

consequential relief, cannot again sue for the same but can only work out his right and obtain the relief by executing the decree.

But even at this early stage of the case-law, this was not the view taken by other High Courts. In Sitaram v. Madho Lal, ILR 24 All 44, that court

held that where the plaintiff did not pay the decretal amount within the time specified, but some years later brought a second suit for redemption,

that suit was not barred either by reason of anything contained in the Transfer of Property Act or by Section 13 or Section 244 of the C. P. Code.

In Ramji Bapuji Patil Vs. Pandharinath Ravji, the Full Bench held that the mortgagor could bring a fresh suit for redemption though the decree nisi

obtained in a prior suit was never made absolute, and the execution of the decree was time barred. Macleod J. observed, after pointing out that the

right to redeem subsisted co-extensively with the relationship of mortgagor and mortgagee, that.

The Indian Legislature has deliberately refrained from enacting that the failure of a mortgagor to pay the amount found due in a suit for redemption

shall operate as a foreclosure.

The matter came up for the authoritative determination of the Judicial Committee in AIR 1934 205 (Privy Council) It is necessary to dwell upon

this decision to a certain extent, since Sri T. M. Krishnaswami Aiyar claims to find, in certain passages therein, authority for his view that a suit for

redemption u/s 60 of the Transfer of Property Act is not affected by the principle of res judicata at all, with regard to any findings in a prior suit,

and cannot be resisted unless it can be shown that this suit itself is barred by the limitation provided by Article 148 of the Limitation Act.

The three points for determination in the case before the Judicial Committee were set forth by their Lordships as follows. The first was that the suit,

though in form a redemption suit, was in reality an application to enforce the old decree of 25th September 1896, that such a suit could not be

maintained, and that the execution of the old decree was barred by limitation. The second point was that the decision in the former suit operated as

res judicata, and that therefore Section 11 C. P. C. prohibited the court from trying the present suit. The third point was that no payment having

been made under the old decree, the former suit stood dismissed on 15th November 1896, with the result that the mortgagor''s right to redeem

became extinguished u/s 60 of the Transfer of Property Act.

Dealing with these contentions, their Lordships pointed out that the issue of res judicata that ""no relevant question of res judicata here arises

because the issues decided in the former suit were substantially different. They added ""If it could be said that the old decree involved a decision

that the mortgagor''s right to redeem was extinguished, that matter could indeed be res judicata."" Having repelled the argument based on res

judicata as inapplicable to the facts before them, their Lordships proceeded to the third point, which they decided in favour of the plaintiff, because

the old decree did not amount to a foreclosure, and did not extinguish the mortgagor''s right of redemption. It is in dealing with the opposite

contention that the old decree did extinguish the right to redeem, that the Judicial Committee observed.

Their Lordships are of opinion that unless constrained by authority, they ought not to so hold. The right to redeem is a right conferred on the

mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose and strictly complied with.

We are unable to see how this passage aids or reinforces the interpretation of Mr. T. M. Krishnaswami Iyer for the appellant that the principle

of res judicata is inapplicable to suits for redemption, because a special procedure is prescribed for such suits u/s 60 of the Transfer of Property

Act.

There can be no doubt that the decision of the Privy Council in AIR 1934 205 (Privy Council) referred to above is a land-mark in the

evolution of the case-law. Subsequently, it has been generally held by all the High Courts that, unless the mortgagor''s right to redeem was

extinguished in the prior suit and the relationship of mortgagor and mortgagee itself no longer subsisted, successive suits for redemption were not

barred, subject, of course, to the total period of limitation under Article 148 of the Limitation Act. Thus, in Polpakara Manakkal Viroopakshan

Nambudripad Vs. Pulipre Tarwad Karnavan and Others, this court held that unless the right of redemption had been extinguished in one of the

modes contemplated by the statute (Section 60 of the Transfer of Property Act) the mere fact that a decree for redemption obtained on a former

occasion had not been excluded, will not bar the subsequent suit for redemption.

The Bombay High Court appears to have uniformly adopted this view. Reference may be made here to Ramchandra Kolaji v. Hanmanta Laxman,

ILR 44 Bom 939 : AIR 1920 Bom 29 and Rajaram Vithal Sutar Vs. Ramchandra Pandu, . The second case dealt with abatement of an earlier

suit, and the court held that so long as the relationship of mortgagor and mortgagee continued and the right to redeem was not extinguished under

any of the modes contemplated by Section 60 of the Transfer of Property Act, the mere abatement of the prior suit would not extinguish that right.

Maruti Babaji Vs. Manohar, was an interesting case, which affirmed the same proposition, though in the converse situation. In that case, the

relationship between the parties and the right 13 redeem had been extinguished by the decree of 1889, and hence it was held that the subsequent

suit was barred by res judicata.

In Subba Rao v. Raju, AIR 1950 FC 1, the opposing trends of case-law are referred to and discussed by Kania C. J. in his judgment. But,

after the decision of the Judicial Committee in AIR 1934 205 (Privy Council) it must be taken that ILR 25 Mad. 300 was no longer valid, and the

conflict had really disappeared. Kania C. J. observed,

Unless equity of redemption is so extinguished, a second suit for redemption by the mortgagor, if filed within the period of limitation, is not

therefore barred. The Board expressly held that AIR 1934 205 (Privy Council) if the appellants failed to establish that the old decree extinguished

the right to redeem, there was no ground for saying that the old decree operated as res judicata.

Before proceeding to a subsequent decision of our court, which has also been strongly relied upon by Mr. T. M. Krishnaswami Aiyar, it may

be convenient to refer to Somanath Pradhan and Others Vs. Sanno Govindo Misra and Others, and Narayana Shenoi v. Yasoda Bai, AIR 1955

Trav. Co. 9 . In Somanath Pradhan and Others Vs. Sanno Govindo Misra and Others, , the Orissa High Court reiterated the proposition that

successive suits for enforcing the right of redemption would lie, so long as the right cannot be held extinguished u/s 60 of the Transfer of Property

Act. The Full Bench decision of the Travancore Cochin High Court embodies a review of the previous case law, and stresses that, subject to

Article 148 of the Limitation Act, successive suits for redemption will lie, unless the jural relationship of mortgagor and mortgagee or the right to

redeem had earlier come to an end.

This aspect again merited and received judicial consideration in Ammenumma Vs. Chelampiriyarath Beeviamma and Others, by Rajamannar

C. J. and Venkatarama Aiyar J. In delivering the judgment of the court, Venkatarama Aiyar J. observed as follows :

The right to redeem is an incident of the relationship of mortgagor and mortgagee. It subsists so long as the relationship subsists, and it is

enforceable u/s 60 of the Transfer of Property Act, so long as it subsists; a second suit for redemption which is not barred by Section 60 of the

Transfer of Property Act will not be barred u/s 11 of the Civil Procedure Code, because the special provision of Section 60 of the Transfer of

Property Act will override the general provisions of the Civil Procedure Code; ""Generalia specialibus non derogant""; and because the cause of

action for the later suit is not the same as in the earlier suit inasmuch as the right to redeem is a continuing and recurring right.

Later, in the course of the same judgment, with regard to a similar right to file a second suit for sale u/s 67 of the Transfer of Property Act, the

Bench observed that this was also ""of course subject to the law of limitation.

Mr. Ramamurthi for the respondent argued that present suit was barred, by virtue of the principle of Section 28 of the Limitation Act. As

pointed out by Ramaswami J. in Thozhukkat Pathan Veettil Tavazhi Lakshmi Tarwad Karnavasthri Lakshmi alias Kuttimalu Amma and Others Vs.

Achutha Menon (died) and Others, , the general principle is that limitation bars the remedy, but it does not extinguish the right itself. Section 28 of

the Limitation Act is an exception to this general principle, so far as acts for possession of property are concerned, and it provides that the bar of

the remedy shall operate to extinguish the right itself.

We are referring to this argument in the present context, in order to focus the real question which arises for determination in the case. If the

principle or doctrine of res judicata is inapplicable to suits for redemption, u/s 60 of the Transfer of Property Act, as such, and such Suits are

wholly outside the operation of that principle, the argument of Mr. Ramamurthi cannot really help him, and involves the fallacy of argument in a

circle. The point stressed by Mr. T. M. Krishnaswami Aiyar is that Section 28 of the Limitation Act does not at all apply to the present suit,

because the present suit is not barred, which he claims to demonstrate by reliance upon the Release deed containing the acknowledgment. It is only

if he is prevented from this, because he relied upon the same ground of exemption from limitation in the prior suit and the issue was decided against

him, which will bind as res judicata, that the contention of Mr. Krishnaswami Iyer can be properly repelled.

But we are unable to see any authority for the wide proposition that suits for redemption u/s 60 of the Transfer of Property Act are excluded from

the operation of the principle of res judicata altogether; nor is there any clear or convincing reason for such wholesale exclusion of one category of

suits from a fundamental principle of the procedural law. The observations of the Bench in Ammenumma Vs. Chelampiriyarath Beeviamma and

Others, extracted and set forth by us earlier, will obviously have to be interpreted in the context of the facts in which they were made, and relevant

to the earlier conflict in the case-law based on ILR 25 Mad. 300. discussed in that decision.

On the contrary, there are clear authorities for the view that the principle of res judicata can apply to matters in issue in redemption suits, precisely

as in other suits. We have already referred to one such early authority, namely, ILR 21 Mad 18. In Asgarali and Others Vs. Dinanath Kumar and

Others, a decision in a previous suit that the mortgagee went into possession of the property in a particular context, was held to operate as res

judicata. As observed by the same court in Abdul Gani and Another Vs. Nabendra Kishore Roy and Others, , it is the matter in issue between the

parties, and not the subject matter of the suit that forms the essential test of res judieata. In Markanda mahapatra Vs. Varada Kameswar Rao

Naidu and Others, it was held that the finding in a prior suit with regard to the inalienable and impartible character of the grant could not operate as

res judicata in the subsequent suit, and that an ex parte decision could operate as ""constructive"" res judicata.

We do not think it is really necessary to labour the point, for very startling results would demonstrably ensue, if the wide proposition that no finding

in a prior suit for redemption could operate as res judicata, in a subsequent suit for redemption, because of Section 60 of the Transfer of Property

Act, were to receive judicial assent. Jagadisan J. points out that a finding in a prior suit that the concerned transaction was an absolute sale and not

a mortgage by conditional sale, would obviously bar a subsequent suit for redemption, by virtue of res judicata. To hold otherwise would lead to

harassment of a vendee, under an absolute sale, the character of whose transaction might have been affirmed by the highest court in the land. The

learned Judge also furnishes the instance of a right of redemption invoked by an alleged legatee under a will, where the testament itself was

negatived in the prior suit.

We think that the matter may be equally acutely illustrated with reference to the present context itself. Let us suppose that the very same release

deed embodying an acknowledgment had been actually produced and proved in the prior litigation, and that it had been established as a forgery in

all the courts, including the High Court of Travancore Cochin. Can it be seriously contended that, notwithstanding this finding, and on the basis that

the principle of res judicata does not apply to suits for redemption so long as the right to redeem is not extinguished u/s 60 of the Transfer of

Property Act, the plaintiff will be entitled to prove the same forged document over again and attempt to obtain a different judgment? In principle,

we cannot distinguish the instance thus given from the present facts. For, in the present case also, the very same document of acknowledgment was

relied upon in the prior proceedings and proof of it failed, so that all the courts came to the conclusion that the alleged acknowledgment could not

be pleaded as a ground of exemption from the limitation under Article 148 of the Limitation Act.

It may be important to emphasise, in this context, that the very same ground of exemption was put forward in the prior suit, and failed in proof,

and that there is therefore no question in this case of ""constructive"" res judicata. This is pertinent, for courts have been inclined to hold that the rule

of ''constructive'' res judicata might not be applicable to a special procedure enacted by statute, or special rights so conferred. The matter was

referred to, though obliquely and not directly, in S. PL. Narayanan Chettiar Vs. M. AR. Annamalai Chettiar, . Further, in O. RM. P. RM.

Ramanathan Chettiar Vs. P.S.L. Ramanathan Chettiar and Others, the Full Bench specifically observed that the principle of constructive res

judicata might not apply to a right conferred by statute; But, in the present case, there is no such difficulty; for the situation is precisely as if this

same acknowledgment had been propounded in the prior suit, and had been held to be a forgery. We must reiterate that the apparent hardship of

the matter in the earlier proceedings wherein the plaintiff was not permitted to prove the acknowledgment in the High Court, nor given an

opportunity for a remand to prove the document, and his petition for review also failed, does not at all concern us, it is the judicial effect of the

decision which alone is our concern.

We are hence of the view that the passages in the decisions discussed earlier to the effect that so long as the right to redeem is not

extinguished, subject to Article 148 of the Limitation Act, successive suits for redemption would lie and that this recurring right would not be

affected by Section 11 C. P. C. must be understood in the context in which those observations were made, repelling the earlier view that where the

prior decree for redemption was time-barred in execution, the subsequent suit was itself barred. Those passages cannot sustain the interpretation

that suits u/s 60 of the Transfer of Property Act are altogether beyond the scope of the principle of res judicata with regard to any matters in

controversy that might be decided in such suits.

The judgment of the learned Judge (Jagadisan J.) must accordingly be affirmed and this Letters Patent Appeal is dismissed with costs.