Skip to content


Dnynoba Gangaram Vs. Dattoba Balappa - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 64 of 1944
Judge
Reported inAIR1947Bom152; (1946)48BOMLR629
AppellantDnynoba Gangaram
RespondentDattoba Balappa
DispositionAppeal allowed
Excerpt:
.....within fixed time-failure by mortgagor to deliver possession of properly-right to sue f or mortgage money when accrues-limitation.;according to the terms of a mortgage deed executed on may 25, 1023, the mortgagee was to be given possession of the mortgaged property and the possession was to be restored to the mortgagor when the money was repaid within five years. the mortgagor failed to deliver possession of the property to the mortgagee. the mortgagee filed a suit against the mortgagor to enforce the mortgage bond on june 11, 1040. on the question whether the suit was in time :- ;that, since the mortgagee was not put in possession of the mortgaged property as agreed, the mortgage debt became payable immediately under section 68(7) (d) of the transfer of property act, 1882, and..........clause (d),, of the transfer of property act, provides that a mortgagee has a right to sue for the mortgage money where the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him. hence the right to sue for recovering the mortgage money in this case accrued to the mortgagee immediately on the mortgagor's failure to deliver possession of the mortgaged property as agreed upon, that is to say, on the date of the mortgage. article 132 of the first schedule to the indian limitation act requires a suit to enforce payment of money charged upon immovable property to be filed within twelve years from the date when the money sued for becomes due. as the defendant did not hand over possession to the mortgagee eknath who was entitled to take.....
Judgment:

Lokur, J.

1. This appeal arises out of a suit to enforce a mortgage bond passed by the defendant in favour of one Eknath for Rs. 3,000, dated May 25, 1923. The plaintiff got the mortgage-deed assigned to himself by Eknath on December 22, 1936, and filed this suit on June 11, 1940. Out of Rs, 6,000 due under the mortgage-deed he remitted Rs. 4,800 and claimed only Rs. 1,200. But the defendant contended that the transaction was sham and that the amount which he had received was returned to Eknath and a receipt was taken from him on June 2, 1923. He also contended that the suit was time-barred as the mortgagee was never put into possession of the mortgaged property. According to the terms of the mortgage-deed, the mortgagee was to take possession of the mortgaged property and to restore its possession to the mortgagor when the money was repaid within five years. The trial Court held that the receipt said to have been passed by Eknath was fabricated and that in fact the mortgage was not satisfied as alleged by the defendant. It was further held that the plaintiff's claim was in time since the suit was filed within twelve years after the amount became due on May 25, 1928. The plaintiff's claim was, therefore, decreed and that decree was confirmed in appeal by the learned Assistant Judge.

2. This second appeal by the defendant must succeed on one ground, viz. the ground of limitation. It is clear from the mortgage-deed that although there was a covenant to repay the amount within five years, the defendant agreed to put the mortgagee into possession of the mortgaged property by way of security, and admittedly the defendant failed to deliver possession either to Eknath or to the plaintiff. Section 68, Sub-section (1), Clause (d),, of the Transfer of Property Act, provides that a mortgagee has a right to sue for the mortgage money where the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him. Hence the right to sue for recovering the mortgage money in this case accrued to the mortgagee immediately on the mortgagor's failure to deliver possession of the mortgaged property as agreed upon, that is to say, on the date of the mortgage. Article 132 of the first schedule to the Indian Limitation Act requires a suit to enforce payment of money charged upon immovable property to be filed within twelve years from the date when the money sued for becomes due. As the defendant did not hand over possession to the mortgagee Eknath who was entitled to take immediate possession under the terms of the mortgage-deed, the period of limitation of twelve years started at once and a suit to recover the mortgage amount had to be filed within twelve years thereafter. This was clearly laid down by the Judicial Committee of the Privy Council in. Lal Narshingh Partan v. Mahommad Yakub Khan : (1929)31BOMLR825 , There the mortgagor having neglected and failed to put the mortgagee in possession of the mortgaged property, as contemplated by the mortgage-deed, the mortgagee sued the mortgagor to recover the mortgage money by sale of the mortgaged property, although a period of thirty-five years had been agreed upon for redemption of the mortgage money, and it was held that the document created a combination of a simple mortgage and a usufructuary mortgage, and the mortgagor having failed to discharge his obligation of making over possession to the mortgagee deprived the mortgagee of part of his security and by virtue of Section 68 of the Transfer of Property Act, the mortgage money became forthwith payable, even before the expiry of the aforesaid period of thirty-five years. The mortgagee was, therefore, held entitled to an immediate enforcement of the mortgage by a decree for sale of the mortgaged property under Section 67 of the Act.

3. Mr. Adarkar for the respondents urges that in this case the mortgagee has two causes of action, one accruing to him on the failure of the mortgagor to deliver possession of the mortgaged property and the other on the expiration of the stipulated period of five years. A similar contention was raised and negatived in Afiruddi v. Joy Chandra : AIR1930Cal703 . It was held there that where the mortgage bond stipulated for the peaceful possession for a particular period and the mortgagee was dispossessed from the property although the mortgagee might be entitled to sue for mortgage money under the mortgage bond on the expiry of the period stipulated for, the cause of action for the suit arose on the date of dispossession and could not be suspended till the date under the mortgage bond.

4. Mr. Adarkar further relies upon the ruling in Dattambhatt Rambhat v. Krishnabhatt 12 Bom. L.R. 491. But there is nothing in that ruling which can help the plaintiff. All that it lays down is that where a mortgage is not purely a usufructuary mortgage and the mortgage debt is made payable within a fixed period, the mortgagee has the right to an order under Section 67 of the Transfer of Property Act to have the property sold after the debt became payable. In. that case there was no question as to when the right to sue for the mortgage money accrued if the mortgagee was not put into possession in accordance with 'the terms of the mortgage-deed. The plaintiff's suit filed more than twelve years after the money sued for became due under Section 68, Sub-section (1), Clause (d), of the Transfer of Property Act, is time-barred under Article 132 of the first schedule to the Indian Limitation Act. The plaintiff's suit must, therefore, be dismissed.

5. I allow the appeal, set aside the decree of the lower appellate Court and dismiss the plaintiff's suit. The appellant shall recover his costs in this appeal from the respondents. The parties shall bear their own costs in the lower appellate Court and in the trial Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //