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indurai Bhaurai Desai Vs. Shivlal Nabhubhal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case Number Second Appeal No. 29 of 1923
Judge
Reported inAIR1925Bom339; (1925)27BOMLR467
Appellantindurai Bhaurai Desai
RespondentShivlal Nabhubhal
DispositionAppeal dismissed
Excerpt:
indian limitation act (ix of 1871), sections 29, article 148 - mortgagor-redemption suit-acknowledgment after the period of limitation-rights of mortgagor barred.;the plaintiff sued in 1916, to redeem a mortgage of 1761 relying upon an acknowledgement of 1858. the property mortgaged was situated in the paneh mahals which were ceded to british government in 1861, the panch mahals having ceased to be a scheduled district at a later date, the first indian limitation (yet to apply to the area was act ix of 1871 :-;that the acknowledgment having been made more than sixty years after the date of the mortgage, not only was the right to redeem the mortgage barred (article 148), but the plaintiff's right to the land was also extinguished (s. 29). - indian succession act (39 of 1925), section 63:..........judge in the trial court. the appeal is dismissed with costs.crump, j.5. i agree that this suit is barred by limitation. the land is situated in the panch mahals district, which up to 1861 was not part of british india. at the time of the cession of that district to the british government, the act governing limitation was act xiv of 1859, but that act had no application to non-regulation or scheduled districts unless specially extended, and it is not disputed that before the enactment of act ix of 1871 there was no statute providing a period of limitations or suits in the panch mahals district. the position, therefore, was that prior to the enactment of 1871 there was no limitation to a suit of this nature, but assuming that before the act of 1871 came into force any person was.....
Judgment:

Norman Macleod, Kt., C.J.

1. This action wan instituted by the plaintiff to redeem and recover possession of property said to have been mortgaged by a mortgage deed of June 8, 1761, The lower Courts have held the mortgage proved, though there may be considerable doubts whether the original document, of which Exhibit 84 purported to be a copy, was really a mortgage within the terms of Section 58 of the Transfer of Property Act. However, we may assume, for the purposes of this appeal, that the property was mortgaged in 1761.

2. The next question is whether the suit is within time. The plaintiff relied upon an acknowledgment said to have been made by the descendants of the mortgagee in 1858. Assuming again that there was such an acknowledgment, which I am not prepared to accept without doubts, would that be an acknowledgment sufficient to save the time bar It is conceded that the Indian Limitation Act IX of 1871 applied to this mortgage, and consequently a suit to redeem would have to be brought within two years of the Indian Limitation Act coming into force, as the mortgage had been executed more than sixty years before that date, and if a suit was brought thereafter the plaintiff would have to rely on an acknowledgment of his title to redeem, given in writing and signed by the mortgagee or some one claiming under him within sixty years of suit. But the acknowledgment, assuming there was one in 1858, having been given more than sixty years after the date of the mort gage, will not avail the plaintiff, as it seems, in spite of the ingenious argument of the appellant's counsel, that it comes within the decision of the Privy Council in Fatimatulnissa Begum v. Sundar Das I.L.R (1900) Cal. 1004. In that case the mortgage was dated October 17, 1788, The suit would have been barred in the absence of any acknowledgment made within sixty years from the date of the mortgage on October 17, 1848, by the effect of Act XIV of 1859, Section 1, clause 15, which barred the suit after January 1, 1862. Act IX of 1871, by Section 29, provided that at the expiration of the period granted to any person for instituting a suit for the possession of land his right to such land should be extinguished. Their lordships dealing with the contention that there had been a written acknowledgment prior to October 17, 1848, held that it had not been proved, with the result that as from October 17, 1848, the right of the mortgagors to sue was barred by force of the Act of 1859 and their right to the land was extinguished by force of the Act of 1871.

3. In this case, therefore, not only was the right to sue barred by the force of the Act of 1871, the first Act of limitation applicable to the case, but the mortgagor's right to the land was also extinguished, for it is impossible to distinguish the case I have cited 0:1 the question of principle from the case before us. There are many other grounds on which the plaintiff's suit could be dismissed, but it is sufficient for our purpose to hold that the suit for redemption is barred.

4. I should like before concluding this judgment to make special reference to the really admirable judgment of the Subordinate Judge in the trial Court. The appeal is dismissed with costs.

Crump, J.

5. I agree that this suit is barred by limitation. The land is situated in the Panch Mahals District, which up to 1861 was not part of British India. At the time of the cession of that District to the British Government, the Act governing limitation was Act XIV of 1859, but that Act had no application to non-regulation or scheduled districts unless specially extended, and it is not disputed that before the enactment of Act IX of 1871 there was no statute providing a period of limitations or suits in the Panch Mahals District. The position, therefore, was that prior to the enactment of 1871 there was no limitation to a suit of this nature, But assuming that before the Act of 1871 came into force any person was subject to the provisions of that Act, such a person had the option of filing the suit before April 1, 1873. But if he did not do so, then the period of limitation will be that provided in the Schedule to the Act of 1871,

6. The question which we have to determine is whether any such suit, as I have indicated, not having been filed, a suit of the nature now before us would be barred under the Act of 1871. For that purpose reference must be made to Article 148 of the second schedule. The period allowed by Art, 148 is sixty years, and in the third column it is said that the time will be extended where an acknowledgment of the title of the mortgagor or of his right of redemption has been made within the prescribed period Now assuming that we have here such an acknowledgment, then the question is whether that acknowledgment is within the prescribed period. For the purpose of Art 148 I take it that the Indian Limitation Act of 1871 should be construed as having a retrospective operation. ' Prescribed period' really means a period of sixty years from the date of the mortgage, and it is conceded that if the document, on which reliance is placed, can be read as disclosing an acknowledgment, that acknowledgment was made more than sixty years from the date of the mortgage. It seems to me, therefore, clear that had the Act of 1871 been applicable to a suit filed for redemption that suit would have been barred, and it is also perfectly clear that the right to sue cannot have been revived by any subsequent enactment.


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