Judgement Appeal (No. 63 of 1931) from a decree of the Chief Court of Oudh (September 23, 1929) affirming a decree of the District Judge of Lucknow (December 21, 1928), which affirmed a decree of the Subordinate Judge dismissing the appellants suit. The suit was brought on February 28, 1928, by the appellant as mortgagee to recover the money due under a mortgage executed by one Bikram Singh on July 26, 1912. The respondents were the widow of Bikram Singh and subsequent transferees of the mortgaged property. The mortgage was for a period of six years, but contained a clause (set out in the judgment of the Judicial Committee) by which, in case of default, the mortgagee was to have power, 3 before the expiration of the stipulated period, to realize the principal and interest by a sale of the mortgage property. Default in payment of interest had been made in the first year; it was stated that no interest had ever been paid. The sole question arising upon the appeal was whether the suit was barred by the Indian Limitation Act, 1908, Sch. I., art. 132. That article provides that a suit to enforce payment of money charged upon immovable property shall be brought within twelve years of the date " when the money becomes payable." The Chief Court, affirming the lower Courts, held that having regard to the clause above referred to the money became payable upon the first default in payment of the interest, and that accordingly the suit was barred. The learned judges in so holding followed decisions of the Chief Court, which had approved and adopted the decisions of the Full Bench of the Allahabad High Court in Gaya Din v. Jhumman Lal (( 1915) I. L. R. 37 A. 400.) and Shib Dayal v. Meharban. (( 1922) I. L. R. 45 A. 27.) They adopted the view of the Chief Court in Gaura v. Ram Charan (( 1927) 4 Oudh W. N. 207.), that as the judgment of the Judicial Committee in Pancham v. Ansar Husain (( 1926) L. R. 53 I. A. 187.) had not overruled the Allahabad decisions the Chief Court should continue to follow its own decisions to the same effect. 1932. April 11, 12. Parikh for the appellant. The respondents did not appear. The argument appears sufficiently from the judgment of the Board. 1932. April 11, 12. Parikh for the appellant. The respondents did not appear. The argument appears sufficiently from the judgment of the Board. In addition to cases there mentioned reference was made to Ham Chand v. Bank of Upper India (( 1921) I. L. R. 3 Lah. 59, 65.); Velliappa Chettiar v. Venkatasubbarayulu Naidu (( 1925) I. L. R. 49 M. 403.) ; Ramsekhar Prasad Singh v. Mathura Lal (( 1925) I. L. R. 4 P. 820.) ; Ram Kuer v. Patraj Kuer (( 1928) I. L. R. 3 Luck . 439.); and Nilkanth Balwant v. Narasinh Bharati. (( 1930) L. R. 57 I. A. 194, 205, 206) June 21. The judgment of their Lordships was delivered by SIR GEORGE LOWNDES. The only question in this appeal is as to the date upon which the principal money became due under a mortgage of certain immovable property in the Lucknow District. Upon this hangs an important question of limitation, and the issue of the appeal. The mortgage is dated July 26, 1912, and purports to be for six years from that date. Apart, therefore, from the provisions of a particular clause in the deed, to be presently referred to, the mortgage money would have become due on July 26, 1918, and under art. 132 of the first schedule to the Limitation Act, 1908, the mortgagee would have a further twelve years in which to bring his suit. The article runs as follows — Description of suit. Period of limitation Time from which period begins run. 132.—To enforce payment of Twelve years When the money sued for money charged upon becomes due. immovable property. The appellant is the mortgagee. He brought a suit praying for a mortgage decree in the usual form on February 28, 1928, i.e., within twelve years from July 26, 1918. He joined as defendants the widow of the mortgagor, who was then dead, and certain puisne encumbrancers, who alone defended the suit. They are respondents to this appeal, but have not been represented before the Board. The main defence was limitation. The Subordinate Judge of Lucknow, in whose Court the suit was instituted, held that it was out of time, and this decision was affirmed on appeal, first by the District Judge and then by the Chief Court of Oudh. The appellant comes before the Board upon special leave. The main defence was limitation. The Subordinate Judge of Lucknow, in whose Court the suit was instituted, held that it was out of time, and this decision was affirmed on appeal, first by the District Judge and then by the Chief Court of Oudh. The appellant comes before the Board upon special leave. Other issues raised at the hearing of the suit in the Court of the Subordinate Judge have not been tried. By the mortgage deed the mortgagor covenanted to pay interest yearly at 12 per cent., and that if the interest for any year was not paid, it should be added to the principal and carry interest at the same rate. Then followed the clause upon which the defence was founded “In case of default, the said creditor shall, at all times, within and after the expiry of the stipulated period of six years aforesaid, have the power to realise the entire mortgage money and the remaining interest and compound interest due to him, in a lump sum, through Court, by attachment and sale of the said mortgaged share, as well as from my person and all other kind of my property, both movable and immovable, together with costs of Court, and I, my heirs, relations and representatives shall have no occasion for objection and refusal; that the aforesaid rate of interest, fixed by me, shall stand within and after the stipulated period and after the decree till payment of the entire demand hereunder and that I shall at no time demand reduction in interest." The mortgagor defaulted in the payment of interest for the first year, and it was contended for the defendants that immediately upon this default the principal moneys became due within the meaning of the article of the Limitation Act set out above, and consequently that the statutory period of twelve years had expired before the institution of the suit. The question their Lordships have to determine is whether this view, upon which the judgments under appeal are all based, is correct. Clauses of this nature in mortgage deeds have been before the Indian Courts in many cases, and there has been a considerable divergence of judicial opinion as to their effect upon limitation. The question their Lordships have to determine is whether this view, upon which the judgments under appeal are all based, is correct. Clauses of this nature in mortgage deeds have been before the Indian Courts in many cases, and there has been a considerable divergence of judicial opinion as to their effect upon limitation. The Chief Cour of Oudh, following a majority decision of the Allahabad Full Bench in 1915, had more than once held that in such cases time ran against the mortgagee from the date of the first default, and the judgments in the present case add little to the elucidation of this problem. The Subordinate Judge thought it clear that the clause gave the mortgagee an option either to sue at once or to wait till the expiry of the mortgage term, but he held himself concluded by authority on the question of limitation. The District Judge thought there was no option, and that the mortgagee " was bound to sue" immediately upon default. In the Chief Court, Srivastava J. noted the conflict of authority, and certain observations of this Board in a recent case, which seemed to throw doubt upon the soundness of the Allahabad decision, but thought it his duty to adhere to the decisions of his own Court so long as they were not definitely overruled. Wazir Hasan J. agreed, but expressed himself rather more confidently on the principle involved. In his opinion, the right of the mortgagee to enforce payment on default made the principal money immediately payable within the meaning of s. 60 of the Transfer of Property Act, 1882, and therefore entitled the mortgagor to redeem regardless of the six years term. The principal authority in favour of the view taken by the Chief Court is the Full Bench case already referred to, Gaya Din v. Jhumman Lal (( 1915) I. L. R. 37 A. 400.), in which the opinions of Richards C.J. and Tudball J. prevailed over that of Banerji J. The gist of the majority judgments was that the money became " due " as soon as it could be legally demanded, i.e., upon the first default. The Chief Justice fortified himself by extracts from the judgments of the Court of Appeal in this country in Reeves v. Butcher ([ 1891] 2 Q. B. 509.), which he seems to have regarded as decisive. Banerji J. took the opposite view. The Chief Justice fortified himself by extracts from the judgments of the Court of Appeal in this country in Reeves v. Butcher ([ 1891] 2 Q. B. 509.), which he seems to have regarded as decisive. Banerji J. took the opposite view. He thought the clause in question was clearly inserted for the benefit of the creditor, and that it was at his option to treat the money as being immediately due or not. He referred to previous Allahabad decisions which seem to support his argument, and in particular to a dictum of this Board in a case decided under the Limitation Act XIV. of 1859, which will be noted presently. Gaya Dins case seems to have been doubted in subsequent cases in the Allahabad Court, but was affirmed by another Full Bench in 1922 Shib Dayal v. Meharban. (( 1922) I. L. R. 45 A. 27.) The authority of these cases is, however, in their Lordships opinion, weakened by a more recent decision of the same High Court, Ashiq Husain v. Chatarbhuj (( 1927) I. L. R. 50 A. 328.), in which Sir Grimwood Mears C.J. and Sen J. refused to extend the principle beyond the limits of the decided cases. Their Lordships think that if, under a clause of this nature, the principal money " becomes due" within the meaning of art. 132 immediately upon default by the mortgagor in payment of interest or of an instalment, it must equally become due upon the breach of any other condition to which a similar provision is attached. Turning now to the other High Courts, their Lordships find a Calcutta decision of 1896, which adopts the same line of reasoning as Allahabad Sitab Chand Nahar v. Hyder Malta. (( 1896) I. L. R. 24 C. 281.) It has been suggested that the same Court ten years later in Rup Narain v. Gopi Nath (( 1906) 11 C. W. N. 903.) followed a different principle, which would favour the appellant, but this decision was given with reference to another article of the Limitation Act, and is, their Lordships think, of no assistance in the present case. Sitab Chands case was no doubt decided under Act XV. of 1877, but the wording of the article in that Act was the same as in the Act of 1908. No authority has been cited from Bombay. Sitab Chands case was no doubt decided under Act XV. of 1877, but the wording of the article in that Act was the same as in the Act of 1908. No authority has been cited from Bombay. There appears to have been a case in Bombay, not in the authorized reports, in which the High Court followed Gaya Dins case, but the judgment adds nothing to the reasoning see Shrinivas Laxman Naik v. Chanbasapagowda. ( 1923 A. I. R. (Bom.) 201.) But the High Court of Madras (Narna v. Ammani Amma (( 1916) I. L. R. 39 M. 981.)), following the judgment of Banerji J. in the first of the Allahabad Full Bench cases, and the High Court of Patna (Ganga Bishun v. Lala Raghunath (( 1930) I. L. R. 10 P. 173.)) have taken the opposite view. Similar questions have been discussed on two occasions before this Board, but in neither case was it necessary to decide the point, though fairly definite indications were given in each of the view the Board was inclined to take. In Juneswar Dass v. Mahabeer Singh (( 1875) L. R. 3 I. A. 1, 6.), a case falling under Act XIV. of 1859, a similar argument was put forward for the appellant to that which has prevailed in the Oudh Courts and Allahabad, though it was based upon the application of a six years period of limitation. The decision was against the appellant on the ground that the period was twelve years and not six. But Sir Montague Smith, who delivered the judgment of the Board, after expressing himself to this effect, continued " Their Lordships must not be supposed, in coming to this decision, to give any countenance to the argument of Mr. Arathoon [for the appellant] that this suit would have been barred if the limitation of six years under cl. 16 had been applicable to it. They think upon the construction of this bond that there would be good reason for holding that the cause of action arose within six years before the commencement of the suit.” A fuller report of the arguments appears in the report at I. L. R. 1 C. 163. It is, their Lordships think, worth noticing that this case was not referred to in Sitab Chand Nahar v. Hyder Malla. It is, their Lordships think, worth noticing that this case was not referred to in Sitab Chand Nahar v. Hyder Malla. (I. L. R. 24 C. 281.) The dictum cited was, however, much relied upon by Banerji J. in his dissenting judgment in Gaya Din v. Jhumman Lal. (I. L. R. 37 A. 400.) The question came up for consideration again before the Board, half a century later Pancham v. Ansar Husain. (L. R, 53 I. A. 187.) In this case the Allahabad High Court had, following the decision in Gaya Dins case, dismissed a mortgagees suit as out of time, it not having been brought within twelve years of the mortgagors default in payment of an instalment, which gave the mortgagees the right (as in the present case), without waiting for the expiry of the stipulated period, to enforce their security. The judgment of the Board was delivered by Lord Blanesburgh, and the material portion of it runs as follows " Applying certain previous decisions of that Court, and in particular a Full Bench decision in Gaya Din v. Jhumman Lal (2), the High Court held that under a clause in the above form a single default on the part of the mortgagors, without any act of election, cancellation or other form of response or acceptance on the part of the mortgagees, and even, it would appear, against their desire, operates, eo instanti, to make the money secured by the mortgage become due, so that all right of action in respect of the security is finally barred twelve years later, that is, in the present case, on February 21, 1906. All this the High Court held, notwithstanding that the mortgage is for a term certain, a provision which may be as much for the benefit of the mortgagees as of the mortgagors, and notwithstanding that the proviso is exclusively for the benefit of the mortgagees. The decision also apparently proceeds upon the view that the words of the English Limitation Act and the English decisions thereon apply without question to the words of art. 132 of schedule to the Indian Act—a conclusion which, as it seems to their Lordships, may involve, and, on the critical point when applied to such a proviso as the present, a large assumption. 132 of schedule to the Indian Act—a conclusion which, as it seems to their Lordships, may involve, and, on the critical point when applied to such a proviso as the present, a large assumption. " Their Lordships are fully alive to the seriousness of the view so taken by the High Court, emphasized and perhaps extended as it has been by a later Full Bench decision to the same effect see Shib Dayal v. Meharban. (I. L. R. 45 A. 27.) Moreover, upon the correctness of it there has been in different High Courts of India a sharp conflict of judicial opinion. It is accordingly manifestly desirable that, so soon as may be, this Board should finally pronounce not only upon the question whether the principle of the two Allahabad decisions above referred to is correct, but also upon the further question whether, even if it is, these decisions have any application to a proviso framed as is that now in suit. Their Lordships would be reluctant, however, to pronounce on either question in the absence of full argument, and it is accordingly a satisfaction to them to find that the present case, in which they have had no assistance from the respondents, can, as they think; regardless of the general question, be decided on its own special circumstances, which, apparently, the High Court was not concerned to note." The judgment then proceeds to deal with the " special circumstances " upon which the actual decision turned ; they have no relevance to the present case. It is no doubt true that the question now before the Board was advisedly left open for future discussion, but the con siderations referred to by Lord Blanesburgh are of great weight, and it is difficult to find an answer to them. They clearly affected the decision in the latest Allahabad case, but though the judgment in Panchams case was cited in the Chief Court of Oudh, the learned judges of that Court would make no further attempt at the solution of the problem. Under these circumstances, it is a matter of great regret to their Lordships that they should now have to pronounce upon these important and difficult questions without the assistance of counsel for the respondents. But the case has been placed before them very fully and with conspicuous fairness by Mr. Under these circumstances, it is a matter of great regret to their Lordships that they should now have to pronounce upon these important and difficult questions without the assistance of counsel for the respondents. But the case has been placed before them very fully and with conspicuous fairness by Mr. Parikh, who appeared for the appellant, and they have given their most anxious consideration to all the judgments which have been referred to. Their Lordships think that no valid distinction can be drawn between the material provisions of the deed in the present case and those upon which the judgments in the Allahabad cases were founded, and that the question to be decided is one of principle. There can be no doubt that, as pointed out by Lord Blanesburgh, a proviso of this nature is inserted in a mortgage deed "exclusively for the benefit of the mortgagees," and that it purports to give them an option either to enforce their security at once, or, if the security is ample, to stand by their investment for the full term of the mortgage. If on the default of the mortgagor—in other words, by the breach of his contract—the mortgage money becomes immediately " due," it is clear that the intention of the parties is defeated, and that what was agreed to by them as an option in the mortgagees is, in effect, converted into an option in the mortgagor. For if the latter, after the deed has been duly executed and registered, finds that he can make a better bargain elsewhere, he has only to break his contract by refusing to pay the interest, and " eo instanti," as Lord Blanesburgh says, he is entitled to redeem. If the principal money is " due," and the stipulated term has gone out of the contract, it follows, in their Lordships opinion, that the mortgagor can claim to repay it, as was recognized by Wazir Hasan J. in his judgment in the Chief Court. Their Lordships think that this is an impossible result. They are not prepared to hold that the mortgagor could in this way take advantage of his own default they do not think that upon such default he would have the right to redeem, and in their opinion the mortgage money does not " become due " within the meaning of art. They are not prepared to hold that the mortgagor could in this way take advantage of his own default they do not think that upon such default he would have the right to redeem, and in their opinion the mortgage money does not " become due " within the meaning of art. 132 of the Limitation Act until both the mortgagors right to redeem and the mortgagees right to enforce his security have accrued. This would, of course, also be the position if the mortgagee exercised the option reserved to him. Their Lordships are not greatly oppressed by the authority of Reeves v. Butcher. ([ 1891] 2 Q. B. 509.) It is, they think, always dangerous to apply English decisions to the construction of an Indian Act. The clause there under consideration differed widely from that now before their Lordships, and indeed from the clauses with which the Allahabad Court had to deal; the question for decision would have fallen in India, not under art. 132, but under art. 75, which is in very special terms; and s. 3 of the statute of James, with which the Court was concerned, made the time to run, not from the date when the money became due, but from the date when the cause of action arose. If in the Indian cases the question were " When did the mortgagees cause of action arise ? "—i.e., when did he first become entitled to sue for the relief claimed by his suit—their Lordships think that there might be much to be said in support of the Allahabad decisions. Judged by the Indian criterion, " when the money sued for became due," upon the best consideration their Lordships have been able to give to this difficult question, they think that the decision of the Chief Court of Oudh was wrong, and that they should have held that the appellants suit was within time. For these reasons their Lordships will humbly advise His Majesty that this appeal should be allowed ; that the decrees of all the Oudh Courts should be set aside ; and that the suit should be remitted to the Court of the Subordinate Judge for trial of the other issues which have not been decided. The respondents 2-6 must pay the costs of the appellant in both the District Court and the Chief Court, and before this Board. The respondents 2-6 must pay the costs of the appellant in both the District Court and the Chief Court, and before this Board. All other costs of the suit will be dealt with upon the further trial.