Research › Search › Judgment

Karnataka High Court · body

2005 DIGILAW 863 (KAR)

YASHODARAIAH v. S. B. PAYIDEVARU

2005-12-22

V.G.SABHAHIT

body2005
( 1 ) THIS appeal by the LRs. , of the defendant is directed against the judgment and decree passed by the Civil Judge (Sr. Dn.), Mandya in RA. No. 29/1997 dated 8-7-2002 allowing the appeal and reversing the judgment and decree passed by the court of II Addl. Munsiff, Mandya, in O. S. No. 637/92 dated 4-1-1997 and consequently decreeing the suit for redemption of mortgage and to deliver vacant possession of the suit schedule property to the plaintiffs. ( 2 ) THE essential facts of the case leading upto this appeal with reference to the rank of the parties before the trial Court are as follows : the plaintiffs filed the suit for redemption of mortgage and for delivery of possession of the schedule property from the defendant. ( 3 ) IT is averred in the plaint that the suit schedule property originally belonged to late sri Anantharajaiah. He died on 8-4-1955. Anantharajaiah had mortgaged the suit schedule property to B. P. Nagarajaiah under a registered mortgage deed dated 10-10-1938. Again Anantharajaiah mortgaged the same property under registered usufructuary mortgage deed dated 8-3-1943 and in the said deed there is a specific recitals that only right to recover the mortgage money, tax if any paid and money spend on repairs should be recovered except mortgage rights no other in excess of the mortgage right is transferred. Anantharajaiah died leaving behind his wife Gunavathamma and minor son Padmaraja who died on 3-11-1966, he was unmarried. The mother Gunavathamma also died in the year 1979. At that time original mortgagor died old Limitation act Article 148 prescribing the period of 60 years for redemption was in force and it was subsisting on the date of original mortgage. In view of the provisions of Sections 14 and 15 of the Hindu Succession Act (for short 'the act') since she died after the Act came into force, the property would devolve on the heirs of her husband and present plaintiffs are the husband's brother's sons. At that time Smt. Gunava-thamma died and the new limitation Act came into force and period of limitation is 30 years and since right to redeem was not extinguished and no such right was conveyed in the said deed and defendant did not file any suit for foreclosure, the suit is filed for redemption of the mortgage and for delivery of possession. ( 4 ) THE suit was resisted by the defendant denying that the plaintiffs are entitled to redemption of mortgage. It is averred that the suit is barred by time as the original mortgage was executed by Anantharajaiah on 8-3-1943 and the plaintiffs are not entitled to redemption of mortgage as he did not have interest in the property. It is true that under the registered usufructuray mortgage deed dated 8-3-1943 Anantharajah executed a sale deed in favour of B. P. Nagarajah and that B. P. Nagarajaiah assigned a mortgage deed in favour of yashodaraiah on 21-12-1963. It is further admitted that Anantharajaiah died in the year 1955 leaving behind his wife gunavathamma and minor son Padmaraja and Padmaraja died unmarried on 3-11-1966. but denied that Padmaraj's mother died in the year 1979 and the property would devolve on the heirs of late Gunavathamma' husband under the provisions of the Act and wherefore the suit is liable to be dismissew with exemplary cost. ( 5 ) THE trial Court framed appropriate is sues. On behalf of the plaintiffs, plaintil no. 1 was examined as PW. 1 and also ex amined PWs. 2 and 3 and got marked Exs p1 to P16. On behalf of the defendants fourth defendant was examined as DW. 1 and defendants also examined DW. 2 and go marked Ex. Dl. The trial Court after con sidering the contention of the parties and the material on record held that plaintiffs have failed to prove that they are the LRs. . of Anantharajaiah and the grand children of Paddaiah as per the geneology and the suit is barred by time as it is beyond 30 years from the date of execution of the mortgage deed dated 8-3-1943 and accordingly answered the issues against the plaintiffs and dismissed the suit of the plaintiffs by judgment dated 4-1 -1997. Being aggrieved by the said judgment and decree, the plaintiffs preferred RA. 29/1997 on the file of Civil Judge (Sr. Dn.) Mandya and the first appellate court by judgment dated 8-7-2002 held that the plaintiffs have proved that they are the lrs. , of Anantharajaiah and even though there may be other LRs. Being aggrieved by the said judgment and decree, the plaintiffs preferred RA. 29/1997 on the file of Civil Judge (Sr. Dn.) Mandya and the first appellate court by judgment dated 8-7-2002 held that the plaintiffs have proved that they are the lrs. , of Anantharajaiah and even though there may be other LRs. , of Anantharajaiah plaintiffs would have got right of redemption and the suit is not barred by time as there was assignment of the mortgage by the mortgagee as admitted in the written statement on 22-12-1963 and having regard to the recital of the assignment deed, fresh limitation would commence from the date of such deed and the suit filed on 20-7-1992 is in time and held that the trial Court was not justified in dismissing the suit of the plaintiffs and accordingly set aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiffs for redemption of the schedule property and ordered that defendant shall deduct the amount deposited or further amount due to the defendant on taking the account and shall deliver vacant possession of the suit schedule property to the plaintiffs and there shall be an enquiry regarding mesne profits as provided under Order 20 Rule 10 of CPC, being aggrieved by the said judgment and decree, the LRs. , of the defendant has preferred this appeal which was admitted on 12-4-2004 for consideration of the following substantial question of law:"whether the suit filed by the respondents for redemption of mortgage was well in time?" ( 6 ) I have heard the learned counsel appearing for the parties on the abovesaid substantial question of law. ( 7 ) THE learned counsel appearing for the appellants defendants submitted that the suit of the plaintiffs is barred by time and as the original mortgage deed was dated 8- 3-1943 and fresh limitation period would not commence from the date of assignment dated 21-12-1963 as what is assigned is only the right of the mortgagee and it does not give rise to any fresh starting point for commencement of period of limitation. The learned counsel further submitted that the plaintiffs have failed to prove that they are the LRs. , of Anantharajaiah and they are entitled to redemption of mortgage. The learned counsel further submitted that the plaintiffs have failed to prove that they are the LRs. , of Anantharajaiah and they are entitled to redemption of mortgage. ( 8 ) ON the other hand, the learned counsel appearing for the respondents plaintiffs submitted that even according to the averments made in the written statement, the relationship is not disputed and according to the defendants, they are the other LRs. , of Anantharajaiah and any person having interest in the property is entitled to redeem and further submitted that the suit filed by the plaintiffs is well in time as the assignment deed is 21-12-1963 it clearly recites the right of mortgagor for redemption and what is transferred is only the usufructuary mortgage rights and not higher right and wherefore the period of limitation would commence from 21-12-1963 and the suit filed on 21-7-1971 is in time. In support of his contention he has relied upon the decision of the Punjab High Court in Des Raj v. Harguradial Singh (AIR 1959 Punjab 249) and the decision of the Allahabad High Court in Anwar Ahmad Khan v. Sultan Ahmad (1979 All LJ 697 ). ( 9 ) IN reply, the learned counsel appearing for the appellants submitted that mere assignment would not extend the period of limitation having regard to the contents of the assignment deed dated 21-12-1963 and in support of his contention he has relied upon the decision of the Hon'ble Supreme court in Tilak Ram and others v. Nathu and others ( AIR 1967 SC 935 ). ( 10 ) I have considered the contention of the counsel appearing for the parties with referene to the material on record and the principles laid down in the decisions relied upon by the learned counsel appearing for the parties and I answer the substantial question of law in the affirmative for the following. REASONS ( 11 ) IT is clear from the perusal of the material on record that the fact, that anantharajaiah had executed a usufructurary mortgage in favour of B. P. Nagarajaiah under the mortgage deed dated 10-10-1938 as per Ex. REASONS ( 11 ) IT is clear from the perusal of the material on record that the fact, that anantharajaiah had executed a usufructurary mortgage in favour of B. P. Nagarajaiah under the mortgage deed dated 10-10-1938 as per Ex. P2 and the fact that b. P. Nagarajaiah the mortgagee assigned the deed in favour of Yashodaraiah the original defendant under the registered deed dated 21-12-1963 is not in dispute as it is admitted in the written statement that nagarajaiah assigned the deed in favour of the original defendant under a registered mortgage deed dated 21-12-1963 as it is averred in the written statement in paragraph 4 that anantharajaiah was subsequently assigned the mortgage to B. P. Nagarajaiah in favour of defendant through registered deed dated 21-12-1963. The trial court held that the suit is barred by time as it is not filed within thirty years from the date of mortgage deed Ex-P-1. However, first appellate Court has held that in view of the assignment of the mortgage deed dated 21-12-1963 the suit filed by the plaintiff is within thirty years from the said date i. e. 20-7-1992 is within time and the first appellate court has held that the recital in the assignment deed dated 21-12-1963 would operate as acknowledgment under Section 17 of the Limitation Act and wherefore would give rise to fresh starting point for period of limitation. The recital in the assignment deed would clearly show that what is assigned by the mortgagee in favour of the original defendant is only the mortgage rights and the right of the mortgagor to redeem the property is admitted and acknowledged in the deed executed by Nagarajaiah the mortgagee in favour of the original defendant dated 21-12-1963 as the suit is filed on 20-7-1992 within thirty years from the date of assignment deed. The decision of the hon'ble Supreme Court relied upon by the learned counsel appearing for the appellant in Tilak Ram v. Nathu ( AIR 1967 SC 935 ) is not helpful to the appellants in the present case as what is laid down by the Hon'ble supreme Court in the said decision is that for acknowledgment of liability, mere statemerit expressing jural relationship between parties is not sufficient and the statement to fall within acknowledgement must show that it was made with intention of admitting such jural relationship subsisting at the time when it was made. As in the present case, the recital in the assignment deed dated 21-12-1963 would clearly show that there is recital and acknowledgment of right of the mortgagor to get the property redeemed. The decisions cited by the learned counsel appearing for the respondents in Q. M. Jalali v. Anusuddin and others (AIR 1974 madras 340) the question as to when the assignment of mortgage deed amount to acknowledgment within the meaning of Section 17 of the Limitation Act and as to whether it would constitute fresh starting point of limitation has been considered and after considering the provisions of Section 17 of the Limitation Act it has been laid down that the assignment by a document by a usufructuary mortgagee to a third person is an acknowledgment of liability by the mortgagee of the original mortgage debt giving to the mortgagor a fresh starting point of limitation and the assignee will be bound by the acknowledgement of his assignor. Similarly, in the case of Anwar Ahmad Khan v. Sultan Ahmad (1979 All LJ 697) relied upon by the learned counsel appearing for the respondents it has been observed that recital in the deed of assignment of the mortgagee's rights signed by the mortgagee, acknowledging in writing the corresponding liability to redemption of property, gives a fresh start to limitation prescribed by Article 61. It is clear from the recital of the assignment deed dated 21-12-1963 that the mortgagee has clearly acknowledged the right of the mortgagor for redemption of the mortgage property and the same has been accepted by the mortgagee and wherefore, it is clear that the finding of the first appellate Court holding that the fresh period of limitation would commence from 21-12-1963 as the recital of the document Ex. P2 dated 21-12-1963 is justified having regard to the contents of the said document Ex. P2 and the trial Court was not justified in holding that no fresh period of limitation would commence after the execution of the assignment deed and the suit filed by the plaintiff is not in time as it is not filed within thirty years from the date of original mortgage deed dated 8-3-1943 as per Ex. P1 and wherefore, it is clear that the finding of the first appellate Court that the suit is filed within thirty years from the date of assignment deed which having regard to the contents of Ex. P1 and wherefore, it is clear that the finding of the first appellate Court that the suit is filed within thirty years from the date of assignment deed which having regard to the contents of Ex. P. 5 amounts to acknowledgement within the meaning of Section 17 of the Limitation Act is justified and cannot be said to be perverse or arbitrary and accordingly, I answer the substantial question of law in the affirmative by holding that the suit filed by the plaintiff for redemption of the mortgage is well in time. There is no merit in the contention of the learned counsel appearing for the appellants that the plaintiff has failed to prove that he has got right of redemption of the mortgage property as he has failed to prove that he is legal representative of Anantha-rajaiah. The said question as to whether the plaintiffs are entitled to redeem the mortgage is a pure question of fact and the first appellate Court having regard to the material on record has held that the plaintiffs have proved that they have got interest in getting the property redeemed. It is clear from the averments made in the written statement that, even according to the defendants what is contended is that, there are other legal representatives of ananatha-rajaiah and plaintiffs are not the only legal representatives of Anantharajaiah. It is well settled that, in view of the provisions of section 91 of the Transfer of Property Act, that any person having interest in the property is entitled to get the property redeemed and mere fact that there may be other LRs. of Anantha-rajaiah would not itself be a ground to dismiss the claim of the plaintiff for redemption and wherefore the trial Court was not at all justified in holding that the plaintiffs have failed to prove that they are entitled to redemption of mortgage and the first appellate Court having regard to the material on record has rightly answered the question of fact by holding that the plaintiffs have proved that they are entitled to redemption of mortgage as they are lrs. , of Anantharajaiah and accordingly, the said finding on the question of fact based upon material on record do not give rise to any substantial question of law to be decided in this appeal as contended by the learned counsel appearing for the appellants and accordingly, I hold that no other substantial question of law arises for determination in this appeal and the substantial question of law framed at the time of admission is answered in the affrirmative and accordingly I pass the following order : the appeal is dismissed. The judgment and decree passed by the Prl. Civil Judge (Sr. Dn.) Mandya in RA. No. 29/1997 dated 8-7-2002 is confirmed. The plaintiffs legal representatives are entitled to redemption as per the description of the property in the deed. However having regard to the facts and circumstances of the case, there shall be no order as to costs in this appeal. Appeal dismissed. --- *** --- .