Research › Browse › Judgment

Madras High Court · body

1975 DIGILAW 477 (MAD)

Thamas v. Victor

1975-09-19

MOHAN

body1975
Judgment :- 1. The 8th defendant is the appellant in the second appeal. The short facts are as follows:— The father of the plaintiff, Vedamani Nadar, was the owner of 28 cents, while the father of defendants 2 and 3 was the owner of another 22 cents. Both of them jointly executed a mortgage deed under Ex. A-5 dated 10th April 1107, (M.E.), in favour of the first defendant. In Ex. A.5, it was undertaken to deal with the prior mortgage, Ex. A.1, dated 3rd February 1076 M.E., which prior mortgage was executed by the pre decessors-in-title of the mortgagors principal under Ex. A.5 in favour of one Poruthiyudayan. The mortgagee Poruttiyudayan died leaving behind 5 sons. On 7th April 1093 (M.E.), under Ex. A.2, the mortgagor executed a Purakadam deed in favour of the 4 sons of Poruthiyudayan. It is only after these transactions that the mortgagors executed Ex. A.5 directing the redemption of the prior mortgages under Exs. A.1 and A2. The first defendant paid Rs. 2500, Panama, towards the discharge of these deeds. Out of the mortgage amounts, the plaintiffs father being the owner of 28 cents, received 1300 fanams and defendants 2 and 3 together received 1200 fanams being the owners of 27 cents. As per the mortgage, the first defendant is in possession and enjoyment of the suit property as mortgagee. 2. While so, Vedamani Nadar, father of the plaintiff, partitioned his property by Ex. A-7, dated 6th October 1933, by which the 28 cents fell to the share of the plaintiff. By the deeds dated 6th October 1105 and 23rd February 1109 (M.E.) the mortgage dated 3rd February 1066 (M.E.) is acknowledged and hence the mortgage is not barred by limitation. Under these circumstances, the suit is filed for redemption. 3. In the written statement of the first defendant, it is contended that the mortgage deed recites to redeem the prior mortgages Exs. A.1 and A.2. The first defendant has redeemed from only 2 of the 5 sons. Therefore, the other three sons of the original mortgagee ought to have been impleaded. In any event, without paying for the mortgage, there cannot be any redemption by the plaintiff. 4. On similar lines, the other defendants also filed written statements. It was mainly contended that the right of redemption had become barred. 5. Therefore, the other three sons of the original mortgagee ought to have been impleaded. In any event, without paying for the mortgage, there cannot be any redemption by the plaintiff. 4. On similar lines, the other defendants also filed written statements. It was mainly contended that the right of redemption had become barred. 5. The learned trial Munsif, on a consideration of the oral and documentary evidence passed a preliminary decree for redemption. On appeal, in A.S. No. 244 of 1958, the said finding of the trial court, was confirmed by the learned District Judge of Kanyakumari. Hence, the present second appeal. 6. The only point that arises for my determination is, as to whether the suit is barred by limitation. 7. Mr. Ganapathisubramania Iyer, learned counsel for the appellant, strenuously contends before me that upon the execution of the purakadam S. 20 of the Travancore Regulation VI of 1100 M.E. gels attracted, as a result of which the limitation of 50 years will have to be computed from the date or the purakadam. In 1951 the Part B States (Laws) Act 1951, came into force and extended the Indian Limitation Act 1908 to Travancore, the result of which would be that within two years Sioux the coming into force of Part B States (Laws) Act 1951, the suit ought to have been lied. In so far as it has not been done, the present suit for redemption is barred. In support of this submission the learned counsel relied on Syed Yousuf v. Syed Mohammed 1967-2 S.C.R. 318. 8. These submissions are countered by Mr. S. Padmanabhan by contending as follows (a) the recitals in Ex. A-2 are to the effect that the mortgagees possession will be on the basil of of Ex. A-2. Such being the position, it was not open to the mortgagor to redeem the mortgage piecemeal. Therefore, even without reference to the Travancore Cochin Limitation Act, if the period of 90 years of limitation is reckoned from Ex. A-1 of the year 1076 M.E. (1918), it is well open to the mortgagors to redeem the property, (b) Though the provisions of the Transfer of Property Act were not made applicable directly to the Travancore-Cochin, the principles adumbrated therein were made applicable to Travancore Cochin. A-1 of the year 1076 M.E. (1918), it is well open to the mortgagors to redeem the property, (b) Though the provisions of the Transfer of Property Act were not made applicable directly to the Travancore-Cochin, the principles adumbrated therein were made applicable to Travancore Cochin. One such provision was S. 61, as it stood prior to the Amending Act 2 of 1929, under which the mortgagor was duty bound to consolidate all the mortgages. If, therefore, a separates redemption of Ex. A-1 was not possible, it cannot be contended that the right of redemption had become barred, (c) In any event, before the expiry of the period of limitation, the new Limitation Act of 1963 had come into force, and therefore, it cannot be contended that the suit ought to have been filed within 2 years after the passing of Part B States (Laws) Act 1931. In support of these submissions, the learned counsel relies on Nachappa Gounden v. Samtappa Goundan A.I.R. 1947 Mad. 18 Bhaskaran Moothathu v. Agnisaramaru Namboorl 1946 T.L.R. 546 Pakavathl Neelakantan v. Ummlnl Pillai A.I.R. 1962 T.C. 295 and Mohamed Akbar Khan v. Mst. Motai 74 I.A. 385, 9. In reply, Mr. Gauapathisubramania Iyer, learned counsel for the appellant, says that the execution of purakadam does not give an extended period of limitation and once limitation started ruining, it cannot be arrested. Undoubtedly, by the execution of purakadam Ex. A.2, S. 20 of Travancore Regulation No. 6 of 1100 will be applicable; that categorically states that the period of limitation has to be reckoned from the date of such purakadam and the said period is so years. On 1st April the Part B States (Law) Act of 1951 came into force and extended the Limitation Act, 1908 to Travancore-Cochin. The result was that the Travancore Regulation No. 6 of 1100 stood repealed by S. 30 of the Indian Act. On this basis, it is contend that three is no period of limitation prescribed for a purakadam under the Indian Limitation Act, 1908, and consequently, the suit ought to have been filed within 2 years viz., by 1953. Therefore, the present suit filed in 1966 is hopelessly barred by limitation. On this basis, it is contend that three is no period of limitation prescribed for a purakadam under the Indian Limitation Act, 1908, and consequently, the suit ought to have been filed within 2 years viz., by 1953. Therefore, the present suit filed in 1966 is hopelessly barred by limitation. In advancing this contention, the following passage in Syed Yousuf v. Syed Mohammed 1967-2 S.C.R. 318, is pressed into service: “Ex facie, S. 30 applied to a suit for which the period of limitation prescribed by the Indian Limitation Act 1908 is shorter than the period of limitation prescribed by the corresponding law in force in the Part B State. Now, the Hyderabad Limitation Act did not apply to a suit for recovery of possession of a wakf property, The result was that under the corresponding law in force in Hyderabad, there was no limitation for such a suit-In other words, the period of limitation prescribed for the suit by the corresponding law in Hyderabad was an unlimited period. Art. 142 of the Indian Limitation Act 1908, applied to a suit for recovery of possession of the wakf property, As it prescribes a shorter period of limitation for the institution of the suit S. 39 enabled the plaintiffs to institute the suit within a period of two years after 1st April 1951. The Part B States (Laws) Act 1951 while extending the Indian Limitation Act 1908 to Hyderabad thus allowed the plaintiffs reasonable time to institute the suit for recovery of the property. The extension of the Indian Limitation Act of 1908 to Hyderabad and the consequential change in law prescribing a shorter period of limitation did set confiscate the existing cause of action and must be regarded as an alteration in the law of procedure for its enforcement. We most, therefore, apply the normal rule that the law of limitation applicable to the suit is the law in force at the date of the institution of the suit. The suit is, tharefore, governed by the Indian Limitation Act 1908:— Though these observations seem to support the contention of the learned counsel for the appellant, to a great extent, in making these submissions, he ignores the recitals occurring in Ex. A.2, since thereunder it is stated that the possession under the mortgage deed shall be on the basis of Ex. A-2 also. A.2, since thereunder it is stated that the possession under the mortgage deed shall be on the basis of Ex. A-2 also. Under these circumstances, the mortgagors ought to consolidate both the mortgage and redeem Exs. A-1 and A-2 together and piecemeal redemption was impossible, as par the law under the T.P. Act that stood prior to the amending Act 2 of 1929. This right of consolidation was not a mere right to have the advantage of an existing statute, but it was a vested right in the property. This is the dictum laid down in Nachappa Goundan v. Samlappa Gonndan A.I.R. 1974 Mad. 18. 10. No doubt, the Transfer of Property Act, as such did not apply to Travancore-Cochin then. But, the principles enunciated therein were made applicable. It was held in Bhaskaran Moothan v. Agnlsamaru Namboorli 1946 T.L.R. 546 that all the mortgages over the same property in favour of one and the same persons must be simultaneously redeemed. It was further held that the rights of redemption involves the obligation to discharge all the debts due to the particular creditor, as against whom redemption is sought. 11. Again in Pakavatht Neelakantan v. Ummini Pillai A.I.R. 1952 T.C. 295 it was held: “Notwithstanding the fact that the Transfer of Property Act was not law in Travancore and Cochin before its introduction there, the principles which S. 61 (before its amendment in 1929) impliedly recognised was applicable to Travancore & Cochin, and all the mortgages over the same property in favour of one and the same person must be simultaneously redeemed, and the mortgagor is not entitled to redeem one without redeeming the other or others.” The above rulings fully support the stand of Mr. Padmanabhan, learned counsel for the respondent. 12. Lala Sontram v. Kanhayalal 40 I.A. 74 was a case wherein the question arose whether by reason of acknowledgment by deeds of 1866 and 1867, the limitation could be extended. It was held that it was not so extended, since those acknowledgments were not made by a person through whom the defendants claimed title, and therefore, the statutory time continued to run during the period between 1883 and 1898. This case is clearly distinguishable. 13. To my mind, it appears that the recitals n Ex. It was held that it was not so extended, since those acknowledgments were not made by a person through whom the defendants claimed title, and therefore, the statutory time continued to run during the period between 1883 and 1898. This case is clearly distinguishable. 13. To my mind, it appears that the recitals n Ex. A-2, to which I have made a reference earlier, are of great consequence and of immense value in deciding the point of limitation. The fallacy in the argument of Mr. Ganapatbisubramania Iyer is, that he wants to reokon the 50 year period of limitation from the date of the purakadam Ex. A.2, without reference to the recitals contained therein. Thus, I am in entire agreement with the findings of the courts below. Consequently, I hold that there are no merits in the second appeal and the same shall stand dismissed. In the circumstances of the case, I make no orders as to costs. No leave.