Abdurahiman Musaliar v. Mammoonhi — 1975 DIGILAW 285 (KER)

JUDGMENT K. Bhaskaran, J. 1. The plaintiff in O.S. No, 34 of 1961 on the file of the Munsiff Court, Tellicherry, is the appellant in this second appeal. The suit was one for partition. 2. The plaint schedule properties, 8 in number, were acquired by one Mammu alias Abdulkhader, the brother of the plaintiff. He dedicated the properties as per a will dated 23rd October 1919 to Saduli Mosque. Under the will, half of the income from the properties was to be utilised for the maintenance of the Mosque, and the remaining half was to be enjoyed by his heirs. After the death of Abdulkhader, his father Mammali Musaliar became the Muthavalli of the Mosque. The said Mammali Musaliar was succeeded as Muthavalli by the plaintiff. The plaintiff had instituted O.S. No. 491 of 1946 on the file of the Munsiff, Tellicherry, for recovery of possession of certain items of properties covered by the will dated 23rd October 1919, on the ground that his father Mammali Musaliar had alienated or encumbered those items without and proper authority in that behalf. In that suit it was decided that the bequest in favour of Saduli Mosque would be confined to 1/3 of the properties mentioned in the will. 3. The present suit is for partitioning of the plaint schedule properties. A preliminary decree for partition has already been passed by the learned Munsiff. Defendants 1 to 7, 14 and 15 who are the legal heirs of Mariyumma, who was the sister of the plaintiff, contended, inter alia, that they are entitled to a sum of Rs. 600 being part of the sale consideration reserved with the vendee, the said Mammu alias Abdulkhader, in Ext. B-1 sale deed, for payment to the said Mariyumma, and in respect of which a charge was created over the plaint schedule properties. They also contended that they are entitled to reservation of three portions of item No. 1 in the plaint schedule covered by (1) Exts. B-2 and B-3: (2) Exts. B-39 and B-19; and (3) Exts. B-12, B-13, B-14 and B-18. The trial court allowed defendants 1 to 7, 14 and 15 to recover the sum of Rs. 600 and also to have reservation with respect to the portion in item No. 1 covered by Exts. B-2 and B-3: (2) Exts. B-39 and B-19; and (3) Exts. B-12, B-13, B-14 and B-18. The trial court allowed defendants 1 to 7, 14 and 15 to recover the sum of Rs. 600 and also to have reservation with respect to the portion in item No. 1 covered by Exts. B-2 and B-3, Aggrieved by the decision of the trial court by which reservation in their favour in respect of the other two portions referred to above in respect of item No. 1, was denied to them, defendants 1 to 7, 14 and 15 took up the matter in appeal in A.S. No, 126 of 1968 on the file of the Subordinate Judge of Tellicherry, The learned Subordinate Judge reversing the finding of the trial court decreed the reservation in respect of the other two portions also in item No. 1 as contended for by defendants 1 to 7, 14 and 15. 4. In this second appeal Sri M. A. Manhu, counsel for the appellant, has urged mainly two points: (1) the decision of the courts below that defendants 1 to 7, 14 and 15, who are the legal heirs of deceased Mariyumma, are entitled to recovery of the sum of Rs. 600 from the other sharers, is wrong inasmuch as the right was barred by limitation under the provisions of Article 62 of the Limitation Act, 1963; and (2) the reservation allowed in respect of the two portions covered by Exts. B-12, B-13, B-14 and B-18 (one portion) and Exts. B-39 and B-19 (another portion) also could not have been done by the trial court. 5. Sri Manhu submitted that the charge for Rs. 600 created in favour of Mariyumma in Ext. B-1 sale deed over the plaint schedule properties should be deemed to operate as a simple mortgage; there being no time fixed for payment, it will have the effect of the amount having become due at once; Article 62 of the Limitation Act (Act 36 of 1963) which fixes 12 years as the period of limitation to enforce payment of money secured by a mortgage or otherwise charged upon immovable property governs the question of limitation in this case; and that Ext. B-1 being of the year 1914, the courts below ought not to have allowed defendants 1 to 7, 14 and 15 to recover the sum of Rs. B-1 being of the year 1914, the courts below ought not to have allowed defendants 1 to 7, 14 and 15 to recover the sum of Rs. 600, which claim was already barred by limitation. It is further contended by him that even though defendants 1 to 7, 14 and 15 have not come to court to enforce the payment of the amount under Ext. B-1, where the remedy is barred the right is extinguished, and therefore the successors-in-interest of the vendee were under no legal obligation to pay the amount to the person in whose favour the part consideration was reserved. 6. Sri V. Bhaskaran Nambiar, counsel for the contesting respondents, would argue that a distinction has to be drawn between the case of a person who as the plaintiff in a suit seeks to enforce a time-barred claim on the one hand and that of a person who as the plaintiff in a suit seeks to obtain certain reliefs, avoiding payment of a time-barred debt. According to him, even though defendants 1 to 7, 14 and 15 in this case might not have been entitled to institute a suit to recover the amount in view of a possible plea that the claim was barred by limitation, it is certainly open to them to contend that the plaintiff is not entitled to claim partition of the plaint schedule properties without at the same time discharging a debt due to them, for which there was a charge over the plaint schedule properties. This contention, in my view, is well founded, as a debt continues to be a debt even after it gets barred by the operation of the law of limitation; and when the creditor cannot institute a suit to enforce the payment of such barred debt against the person who owes it, such person is entitled to plead in defence that he is entitled to have the amount of debt paid over to him by the debtor. In Narhar Ramchandra Gude v. Gullu Dhondba Kasar A.I.R. 1933 Nagpur 190 the question came up for consideration and what has been stated is as follows: "It is only just and equitable that a person who obtains possession of property over which he has a charge should have that charge satisfied before he is made to part with possession irrespective of the fact that his remedy to enforce the charge may be barred by limitation."� In Ali Mohammed v. Ramnivas and another A.I.R. 1967 Raj.258 at 263 in paragraph 11 of the judgment it is stated as follows: "(11) Then as to the objection of limitation regarding the recovery of this amount, on the ground that it had been advanced and/or acknowledged in 1941, and therefore had become time-barred at the date of the suit. I am of opinion that this has no force. In the first place, it must be remembered that the various articles of Limitation Act in Schedule I thereof, apply to suits and applications and not to pleas raised by way of defence and, therefore, the law of limitation cannot operate as a bar to a plea taken in defence. Thus a mortgagee can lawfully set up in his defence a mortgage deed as a shield even though his right to enforce it may have become statute barred. Likewise a tacking agreement or bond to a mortgage when pleaded in defence stands on the same footing and, therefore, the plea that if a suit were to be brought on its basis, it would be barred by time, can be of no avail." The view taken in Manmohan Das and others v. Babauddin and others A.I.R. 1957 All. 575 and First National Bank Ltd. (in Liquidation) v. Seth Sant Lal A.I.R. 1959 Punjab 328 also lends support to this conclusion reached by the High Courts of Nagpur and Rajasthan. The Supreme Court in Mathuralal v. Keshar Bai A.I.R. 1971 S.C. 310 has observed as follows: "The position of the creditor is strengthened whereas in this case the interest on the amount of the mortgage is not the same as the rental fixed. The Supreme Court in Mathuralal v. Keshar Bai A.I.R. 1971 S.C. 310 has observed as follows: "The position of the creditor is strengthened whereas in this case the interest on the amount of the mortgage is not the same as the rental fixed. If daring the continuance of the security the mortgagee wants to use the mortgagor on the basis of the rent note and take possession himself or to induct some other tenant thereby securing to himself the amount which the mortgagor had covenanted to pay, there can be no legal objection to it. Under the provisions of Order 34, rule 4, he cannot deprive the mortgagor of his right to redeem excepting by proceeding on his mortgagee ¦........So long as the mortgagor had a right to redeem the mortgage he can always pay off the mortgagee and get back possession. This position would continue so long as the property is not sold under a final decree for sale under the provisions of Order 34, C.P.C. The rights of a mortgagee do not merge in his rights under the preliminary decree for sale If the right of the mortgagee arose on the strength of the rent note which continued to be in force notwithstanding that the period for applying for a final decree for sale had expired, there could be no extinction of his right to sue for possession because of section 38 of the Limitation Act."� Though this decision does not directly deal with the problem, which we are confronted with in this second appeal, the view of the Supreme Court is in consonance with the line of reasoning given by the High Courts of Nagpur, Allahabad, Rajasthan and Punjab to which references have already been made. I am therefore of the opinion that though defendants 1 to 7, 14 and 15 could not have instituted a suit for enforcing the claim for the amount reserved with the vendee for payment to Mariyumma, their predecessor-in-interest, creating a charge for that amount over the plaint schedule properties conveyed under Ext. B-1, they could nevertheless successfully plead as a defence in the suit for partitioning the plaint schedule properties instituted by the plaintiff, that he could not obtain the relief sought by him without his discharging the burden of debt in their favour irrespective of the fact that it is time-barred or not. B-1, they could nevertheless successfully plead as a defence in the suit for partitioning the plaint schedule properties instituted by the plaintiff, that he could not obtain the relief sought by him without his discharging the burden of debt in their favour irrespective of the fact that it is time-barred or not. In this view I reject the contention of the appellant that the courts below is in error in decreeing in favour of defendants 1 to 7, 14 and 15 the sum of Rs. 600 due to them under Ext. B-1 sale deed. 7. Now turning to the reservation with respect to the two portions in item No. 1 in the plaint schedule covered by Exts. B-19 and B-39 (one portion), and Exts. B-12, B-13, B-14 and B-18 (another portion), we may first take up the question regarding the portion which is covered by Exts. B-19 and B-39. The question, no doubt, has been elaborately considered by the learned Munsiff in paragraph 22 of the judgment. The fallacy committed by the learned Munsiff appears to be that he failed to take note of the due significance of P.W. 1 admission that inspite of the difference in survey number and measurements, the property covered by the registered assignment deed Ext. B-39 dated 1st May 1949 executed by one Koran in favour of one Abubacker and Ext. B-19 assignment deed executed by the said Abubacker in favour of the 7th defendant on 2nd May 1960 is the same as what was covered by the oral lease in favour of Koran and to which reference is made in Ext. B-15 decree in O.S. No. 441 of 1951 on the file of the Munsiff of Tellicherry. Commenting on Ext, B-15 the learned Subordinate Judge in paragraph 12 of his judgment has observed as follows:- Ext. B-15 is the certified copy of the decree in O.S. 441 of 1951 of the Munsiff Court, Tellicherry. That suit was filed by the same plaintiff against the said Koran and Abdulkader for arrears of rent in respect of a portion of item one. According to the 7th defendant, the property in Ext. B-1 is the same as in Exhibits B-19 and B-39. It is true that there is some difference in the sub-division of survey number and the measurement. According to the 7th defendant, the property in Ext. B-1 is the same as in Exhibits B-19 and B-39. It is true that there is some difference in the sub-division of survey number and the measurement. But from the name of the property and from the boundaries, it will be seen that it relates to the same property and P.W. 1, the plaintiff, has no case that Exhibit B-15 relates to a different property. P.W. 1 has admitted in cross-examination that Koran was in possession of portion of item 1 and he had assigned it to Abdulkader and the suit filed by him was against Koran and Abubacker. In the light of that admission and Exhibit B-15 the lower court was not justified in saying that the property is not the same. In the light of Exhibit B-15, it is immaterial that 7th defendant did not produce any rent receipt I am, therefore, in agreement with the conclusion reached by the first appellate court in regard to the reservation claimed by defendants 1 to 7, 14 and 15 with respect to the portion of item No. 1 covered by Exts. B-19 and B-39. 8. Last comes the question regarding reservation in respect of the third portion covered by Exts. B-12, B-13, B-14 and B-18. Here again, the trial court appears to have committed some serious mistakes while discussing the point in issue in paragraph 23 of the judgment. The 7th defendant case is that one Govindan had leasehold interest in the property by virtue of Ext. B-13 registered marupat dated 7th February 1940 executed by him in favour of Mammali Musaliar and Mariyumma, and that they had in acknowledgement of the lease, signed Ext. B-12 counterpart on the very same day. Ext. B-14 is the registered assignment deed executed by Govindan on 1st April 1940 in favour of one Ussan who, in his turn, by Ext. B-18 assignment deed dated 4th June 1959 had conveyed his leasehold interest to the 7th defendant. One of the reasons that weighed with the learned Munsiff was that no rent receipt granted to Govindan was produced in order to show that he got possession of the property under Exts. B-12 and B-13. In my opinion, in view of Ext. B-18 assignment deed dated 4th June 1959 had conveyed his leasehold interest to the 7th defendant. One of the reasons that weighed with the learned Munsiff was that no rent receipt granted to Govindan was produced in order to show that he got possession of the property under Exts. B-12 and B-13. In my opinion, in view of Ext. B-12 counter-part signed by Mammali Musaliar and Mariyumma, the nonproduction of rent receipt, if any, granted in the name of Govindan is of little consequence; moreover, Govindan could not have normally obtained a rent receipt also, as within two months of the lease in his favour under Ext. B-13 he had assigned his right to Ussan. The learned Munsiff appears to have misunderstood and misread the true purport of the relevant portion in Ext. A-57 judgment in O. S. No. 55 of 1940 on the file of that court, when he thought that it was held in and by that judgment that Ext. A-61 partition deed, under which Mammali Musaliar, the lessor, got the right to grant lease. As a matter of fact, there is noting in Ext. A-57 judgment to show that A-61 partition karar was declared invalid; it is even doubtful whether Ext. A-61 or its original was produced at all in the proceedings that culminated in Ext. A-57 judgment. I do not think that it is necessary to discuss this point in great detail, as the discussion in paragraph 13 of the judgment of the first appellate court is fairly exhaustive and the evidence on record has been appreciated by that court in the proper perspective. In short, this being the position, I find no scope for interference with the finding entered by the first appellate court in regard to the reservation claimed in respect of the two portions of item No. 1 of the plaint schedule properties covered by Exts. B-39 and B-19 (one portion) and Exts. B-12, B-13, B-14 and B-18 (another portion) also. 9. Counsel for the appellant then submitted that he has been made liable to account for mesne profits and that he was not in a position to produce all the documents which have relevance to that aspect of the matter before the trial court prior to the passing of the preliminary decree. B-12, B-13, B-14 and B-18 (another portion) also. 9. Counsel for the appellant then submitted that he has been made liable to account for mesne profits and that he was not in a position to produce all the documents which have relevance to that aspect of the matter before the trial court prior to the passing of the preliminary decree. He requested that the plaintiff be given an opportunity to produce such of those documents which are now available with him, but which he could not produce in court at. the time of the trial, in order to ennable him to lead evidence touching the question of the quantum of mesne profits, the determination of which has been left to be made during the course of the final decree proceedings in terms of the preliminary decree. I am convinced that in the interest of justice it would be necessary to give an opportunity to the appellant-plaintiff to produce additional evidence, if any, he has to substantiate his plea with regard to the quantum of mesne profits. All the same, I make it clear that whatever conclusions the trial court had already reached with respect to each of the documents already produced would remain and that this opportunity given to the plaintiff would be confined to adducing additional evidence, if any, that might have bearing to the fixation of the quantum of mesne profits to which he would be liable. The second appeal is dismissed subject to the direction to the trial court to give an opportunity to the plaintiff in the final decree proceedings to adduce additional evidence, if any, he has in regard to the question of mesne profits to which he would be liable in terms of the preliminary decree. In the circumstances of the case there will be no order as to costs.