Parameswaran Thampi v. Kanakamma Thankachi — 1975 DIGILAW 605 (MAD)

Judgment :- 1. The first defendant in O.S. No. 205 of 1969 on the file of the Principal District Munsif, Padmanabhapuram, who succeeded in the trial court, but failed in the lower appellate court, is the appellant. 2. The first respondent, Kanakamma Than kachi, filed the suit for redemption of the mortgage covered by Ex. A-1 dated 9th September 1062 M.E. corresponding to 25th June 1886, executed by the then Karnavan of her Tarvad, Champakaraman Marthandan, in favour of the appellants predecessor-in-interest, Chinnamma Pilla for 350 fanams. She alleged that a subsequent charge over the same property had been created by a subsequent Karnavan Champakaraman Velayudhan in favour of Lakshmi Pilla, the subsequent predecessor-in-title of the appellant, under the original of Ex. A-2, dated 1st February, 1090 M.E. corresponding to 17th July, 1915. She further alleged that Lakshmi Pilla had assigned the mortgagees right covered by Ex: A-1, in favour of one Pakianathan Nadar under the original of Ex. B-1, dated 7th February, 1106 M.E., corresponding to 23rd September, 1930, and that she, the first respondent, was the successor-in-interest of the mortgagor (sic) Champakaraman Marthandan and was entitled to redeem. 3. The appellants defence was that the property had already been mortgaged usufructuarily to his maternal grandmother Chinnamma Pilla Thankachi in 1040 M.E., itself and Exs. A-1 and A-2 had not been, accepted by the mortgagee and that the suit for redemption of the said mortgage of 1040 M.E. was barred by limitation. He further contended that even the suit on the basis of the mortgage and charge, Exs. A-1 and A-2, were barred by limitation. 4. The learned District Munsif dismissed the suit holding that the first respondent has not proved title to the property or that the mortgage and charge under Exs. A-1, and A.2, had been accepted by the mortgagees, without considering the question of limitation. But the learned Subordinate Judge, on appeal, held that the mortgage and charge under Exs. A-1 and A-2 had been accepted by the mortgagee, and decreed the suit holding that there is no bar of limitation, on the basis that Ex. A-2 was a purakadam and under the Travancore Law, the morgagor had a period of 62 years from the date of Exs. A-1 and A-2 had been accepted by the mortgagee, and decreed the suit holding that there is no bar of limitation, on the basis that Ex. A-2 was a purakadam and under the Travancore Law, the morgagor had a period of 62 years from the date of Exs. A-2, viz., 50 years provided under that Law for redemption and 12 years being an additional period granted in case there was a purakadam over the property, and that the suit, under the Travancore Law, should have been, filed before 1st December, 1152 M.E. and the new Limitation Act of 1963 provides a period of 5 years under S. 30, after it came into force for filing the suit and that the suit has been filed before the expiry of that period. 5. The learned counsel for the appellant advanced arguments before me only on the question of limitation. It is not disputed that Ex. A-2 says that it is a purakadam and under S. 20(1) of the Travancore Limitation Regulation VI of 1100 M.E., the mortgagee will have a further period of 12 years to redeem in addition to the period of 50 years provided under Art. 136 of that Regulation which says that the mortgagor shall have 50 years from the date on which the right to redeem or to recover possession accrues in a suit against a mortgagee to redeem or recover immovable property mortgaged. S. 20(1) of the Limitation Regulation VI of 1100 M.E. reads thus: “If, before the expiration of the period prescribed for the redemption of a mortgage, the mortgagee accepts from the mortgagor a Puravaippu or Purakadam deed creating a further charge on the mortgaged property and duly registered, the prescribed period of limitation shall be computed from the date of such Paravaippu or Purakadam deed.” The Purakadam has been created by a registered deed of which Ex. A.2 is a registration copy. Reference is made in the Bench decision of the Travancore-Cochin High Court in Bhageerathi Pilla Omanakuitiamma v. Kocha Nadar Podian Vadar A.I.R. 1952 T.C. 286 to the Full Bench decision in Gnana Prakasam v. Samuel 13 Tr. A.2 is a registration copy. Reference is made in the Bench decision of the Travancore-Cochin High Court in Bhageerathi Pilla Omanakuitiamma v. Kocha Nadar Podian Vadar A.I.R. 1952 T.C. 286 to the Full Bench decision in Gnana Prakasam v. Samuel 13 Tr. L.J. 37, where it had been held— “Where an otti contained a direction empowering the mortgagee to plant trees and make other improvements on the property mortgaged, coupled with or implying a promise by the mortgagor to compensate the mortgagee for such improvements, the combined effect of the direction and the promise was to confer on the mortgagee the right to remain in possession for a period of 12 years in the absence of any other clause in the instrument indicating an inconsistent or contrary intention” The explanation to S. 20 of the Limitation Regulation VI of 1100 M.E. says that the word ‘mortgagee’ in the section includes any person who could legally represent the mortgagee or an agent duly authorised by him to act on his behalf. S. 6 of the Part B States (Laws) Act. (III of 1951), says— “If immediately before the appointed day, there is in force in any Part B States any law corresponding to any of the Acts or Ordinances now extended to that States that law shall, save as otherwise expressly provided this Act, stand repealed.” S. 2 of that Act says that in that Act the ‘appointed day’ means the date on which the Act comes into force. There is no dispute that that Act came into force on 1st April 1951 and that the Indian Limitation Act, 1908, became applicable to the areas concerned from 1st April 1951 and that the Limitation Regulation VI of 1100, M.E. stood repealed with effect from that date. Whereas Art. 136 of the Limitation Regulation VI of 1100, M.E., provided a period of 50 years from the date on which the right to redeem or to recover possession accrues for a suit against a mortgagee to redeem or to recover possession of immovable property, mortgaged, Art. 148 of the Limitation Act, 1908, provide a period of 60 years from the date on which the right to redeem or to recover possession of immovable property mortgaged accrued. S. 30 of the Limitation Act, which granted a period of two years for the institution of suits in cases where, the period prescribed was shorter than that prescribed by any law that was previously in force in Part B State has now been repealed by the Adaptation of Laws (No. 2) Order of 1956. Therefore, if the period of limitation prescribed in the Limitation Act of 1908 was shorter than the period prescribed in the Limitation Regulation VI of 1100 M.E., the mortgagor would have had a period of two years from 1st April 1951 to file the suit. But S. 30 of the Limitation Act 1908 would not be attracted in this case, as the period prescribed in the Limitation Act, 1908 which is 60 years as mentioned above, is not shorter but larger than the period of 50 years prescribed in Art. 136 of the Limitation Regulation VI of 1100 M.E. In Syed Yousuf Yarkhan v. Syed Mohamed Yarkhan A.I.R. 1976 S.C. 1318, a Wakf in Hyderabad State was dispossessed of its properties on 20th September 1937. Under the Hyderabed limitation Act II of 1322-F, then in force, there was no Limitation for a suit for recovery of a wakf property, as by virtue of S. 29(c) such suit was outside the Act. The Part B States (Laws) Act, 1951, came into force and extended the Limitation Act, 1908, to Hyderabed State on 1st April 1951. On 3rd February 1956, a suit was instituted for recovery of possession of the property. It has been held that the suit was governed by the Indian Limitation Act in as much as the period of limitation prescribed by Art. 142 was shorter than that prescribed by the Hyderabad Limitation Act (which was unlimited) and as such the suit had to be brought within two years from 1st April 1951, on which date the Indian Limitation Act was extended, in view of S. 30 of the Limitation Act 1908, which enabled the plaintiff in such cases to institute the suit within two years after 1st April 1951. It has been observed in that decision that the extension of the Indian Limitation Act, 1908 to Hyderabad and the consequential change in the law prescribing a shorter period of limitation did not confiscate the existing cause of action and must be regarded as an alteration in the law of procedure for the enforcement of the cause of action, and that 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. 6. S. 30 of the new Limitation Act, 1963 which came into force on 1st January 1964 reads thus: “Notwithstanding anything contained in this Act(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of five years after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908 whichever period expires earlier. ..” Now the period of five years mentioned in-clause (a) of S. 30 has been extended to seven years. S. 30 of the Limitation Act, 1963 would not also be attracted in this case as the suit was instituted in 1969, for the period of 60 years provided in Art. 148 of the Limitation Act, 1908, for the redemption of the mortgage covered by Ex. A-1 dated 25th June 1886 had expired even before the new Limitation Act, 1963 came into force. S. 31 of the new Limitation Act, 1963 lays down: “Nothing In this Act shall—(a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908, expired before the commencement of this Act; or (b) affect any suit appeal or application instituted, preferred or made before, and pending at, such commencement”. 7. The learned counsel for the appellant submits that since the period prescribed in Art. 148 of the Limitation Act, 1908. 7. The learned counsel for the appellant submits that since the period prescribed in Art. 148 of the Limitation Act, 1908. is sixty years and is larger than the period of 50 years prescribed in Art. 136 of the Limitation Regulation VI of 1100, M.E. and the Limitation Act of 1908, had been made applicable to the area concerned on 1st April 1951 by the Part B States (Laws) Act III of 1951, the suit should have been filed within 60 years from the date of the mortgage, Ex. A-1, namely, prior to 25th June 1946. He further submits that there is no provision in the Limitation Act, 1908 corresponding to S. 20 of the Limitation Regulation VI of 1100, M.E. which, as already stated, gave a further period of 12 years for redemption in case there was a puravaippu or purakadom over the same property, and that even if a period of 12 years could be added to the period of 60 years allowed by Art. 148 of the Limitation Act, 1908, the suit should have been filed in 1958, and is clearly barred by limitation having been filed only in 1969. There is no provision in the Limitation Act, 1908, corresponding to S. 20 of the Limitation Regulation VI of 1100 M.E., and therefore, it is not possible to add a period of 12 years to the period of sixty years provided in Art. 148 of the Limitation Act 1908, which refers only to the mortgage. The decision in Nachappa Goundou v. Samiapph Gounden A.I.R. 1947 Mad. 18, arose out of a mortgage executed on 15th April 1921, after four other prior mortgages had been executed. The learned Judges have observed in that decision thus: “The doctrine of consolidation has been recognised by the Judicial Committee in Ramanayanimgar v. Maharaja of Venkatagiri , 50 Mad. 180. ..” “This decision is an authority for the proposition that the Transfer of Property Act. 1882, enacted by implication that a mortgagor seeking to redeem one mortgage shall not be entitled to do so without paying the sums due under a separate mortgage or charge if the latter relates to the same property. It is a statutory right that is given by the Act, though not expressly, that in cases where there are two encumbrances on the same property, the mortgagor is not entitled to redeem the one without redeeming the other. It is a statutory right that is given by the Act, though not expressly, that in cases where there are two encumbrances on the same property, the mortgagor is not entitled to redeem the one without redeeming the other. This decision is also an authority for the proposition that whether the other encumbarance is a mortgage or a charge, in either case, the mortgagor has to pay sums due thereunder before he can redeem the mortgage which be seeks to redeem. The old section and the new section may now be set out: Sec. 61 before amendment: Sec. 61 as amendment: A mortgagor seeking to redeem any one mortgage shall in the absence of a contract to the contrary, be entitled to do so without paying any money due under any separate mortgage made by him or by any person through whom he claims, on property other than that comprised in the mortgage which he seeks to redeem. A mortgagor who has executed two or more mortgages in favour of the same mortgagee shall in the absence of a contract to the contrary, when the principal money of any two or more of the mortgages has become due, be entitled to redeem any one such mortgage separately, or any two or more of such mortgages together. The words ‘on property other than that comprised in the mortgage which he seeks to redeem’ have been omitted on the new section. Now whether the mortgages are on the same property or on different properties, there is no right of consolidation and the mortgagor may redeem any one mortgage, or one or more mortgages without redeeming the others, This result was reached by Sec. 24 of Act 20 of 1929.” 8. Therefore, after the Amendment Act 20 of 1929, the mortgagee was not entitled to insist on the mortgagor redeeming the charge created under the original of Ex. A-2 before he could redeem the mortgage created under Ex. A.1. Therefore, it would follow that after the Limitation Act, 1908, had been made applicable to the area concerned by the Part B States (Laws) Act III of 1951, in the absence of any provision in the Limitation Act, 1908, corresponding to S. 20 of the Limitation Regulation VI of 1100, M.E., it was open to the mortgagor to redeem the mortgage covered by Ex. A.1 alone, and it was not open to the mortgagee to insist on the redemption of the charge covered by the original of Ex. A.2 before the mortgagor could be allowed to redeem the mortgage covered by Ex-A.1. The Limitation Act, 1908, had been made applicable to the area with effect from 1st April 1951, and the mortgagor had to redeem the mortgage covered by Ex. A-1 within sixty years from the date of its execution, namely, 25th June 1886, and the suit filed only in 1969 is clearly barred by limitation, and it is not possible to agree with the learned Subordinate Judge that the mortgagor had a period of 62 years from the date of Ex. A-2, for redemption and could file the suit within five years after the new Limitation Act 1963, came into force in view of S. 30 of that Act and that the suit is in time. I agree with the learned counsel for the appellant and find that the suit is barred by limitation. 9. The learned counsel for the appellant submits that if the transaction covered by Ex. B-1 dated 7th February, 1106 M.E., corresponding to 23rd September, 1930 is only an assignment of the mortgagees right covered by Ex. A-1, Art. 134 of the Limitation Act, 1908, which corresponds to Art. 122 of the Travancore Limitation Regulation VI of 1100, M.E., will not apply and that Ex. B-1 is, in fact, an othi in which the appellants predecessor-in-title, Lakshmi Pilla has stated that the property covered by Ex. B-1 which is same as the one covered by Ex. A-1, was his own (ende vagha). Art. 122 of the Travancore Limitation Regulation VI of 1100, M.E., corresponding to Art. 134 of the Limitation Act, 1908 prescribes a period of 12 years from the date of knowledge of the transfer in a suit to recover possession of timmovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration. The suit would have been barred by limitation even if it had not been filed prior to 23rd September, 1942, if it had been proved that the mortgagee or his successor-in-interest had knowledge of the othi transaction covered by Ex. B-1. The learned counsel for the appellant admitted that there is no evidence about any Knowledge of the transaction covered by Ex. B-1. The learned counsel for the appellant admitted that there is no evidence about any Knowledge of the transaction covered by Ex. B-1 on the part of the first respondent or her predecessor-in-title. Therefore, it was not open to the appellant to contend that the suit would have been barred by limitation if it had been filed after 23rd September, 1942. 10. The Second Appeal succeeds in view of my finding that the suit is barred by limitation and is allowed; but under the circumstances of the case, without costs. No leave.