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Manik Sadashiv and ors. Vs. Krishnabai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 171 of 1957
Judge
Reported inAIR1964Bom284; (1964)66BOMLR515; 1964MhLJ595
ActsLimitation Act, 1908 - Schedule - Article 132; Transfer of Property Act, 1882 - Sections 82, 92, 95 and 100
AppellantManik Sadashiv and ors.
RespondentKrishnabai and ors.
Appellant AdvocateC.P. Kalele, Adv.
Respondent AdvocateG.R. Mudholkar, Adv.
Excerpt:
.....limitation act (ix of 1908), article 132 - transfer of property act (iv of 1882), sections 92,100--right of contribution and right of subrogation--starting point of limitation for suit to enforce rights similar to those of mortgagees and suit to enforce right to claim contribution.;the right of contribution is quite independent of the right of subrogation conferred by section 92 of the transfer of property act, 1882. while considering the question of limitation in such cases, the important point for consideration would be 'what is the nature of the claim in suit?' that is to be decided on the allegations in the plaint. if the allegations in a plaint indicate that it is a suit to enforce rights similar to those of the mortgagee, in that case the plaintiff cannot have higher rights than..........shrikrishna and redeemed the whole mortgage. on 13-4-1955 the plaintiffs filed the present suit for contribution. in the plaint, after setting out the above mentioned facts, the plaintiffs allege that they are entitled to receive contribution and if the defendant, i.e kisan, fails to pay the amount due from him by way of contribution, the amount should be recovered by enforcing the charge, which, the plaintiffs have under section 100 of the transfer of property act.2. the defendant contested the suit on various grounds. so far as this appeal is concerned, the only important contention is that the suit is barred by limitation.3. both the trial court as well as the lower appellate court have held that the present suit is barred by limitation under article 132 of the limitation act,.....
Judgment:

1. The only question that arises in this appeal is one of limitation. The relevant facts are as follows: On 18-5-1933 one Anant for himself and as the guardian of his minor son mortgaged to one Shrikrishna Survey Nos. 38 and 116/1 for Rs. 700/-. The mortgage amount was payable by seven annual instalments, the first one being payable on 15-1-1934. On 23-7-1940 the mortgagors sold to the plaintiffs their equity of redemption in respect of 3 acres and 20 gunthas out of survey-No. 38, now numbered as survey No. 38/2, and the whole of survey No. 116/1 for Rs. 1400/-. Out of the said consideration, Rs. 650/- were paid in cash and the remaining Rs. 750/- were to be paid by the plaintiffs to the above-said mortgagee. The sale deed recites that the mortgagee had agreed to settle his dues for Rs. 750. The original defendant Kisan was a co-occupant in survey No. 116, he being the owner of survey No. 116/2. Kisan the present defendant filed a suit for pre-emption against the plaintiffs in respect of survey No. 116/1, A pre-emption decree was passed in favour of Kisan the present defendant on 30-6-1942; he was allowed pre-emption and possession on depositing Rs. 315/-subject, however, to the abovesaid mortgage. On 16-4-1913 the plaintiffs paid Rs. 825/- to the mortgagee Shrikrishna and redeemed the whole mortgage. On 13-4-1955 the plaintiffs filed the present suit for contribution. In the plaint, after setting out the above mentioned facts, the plaintiffs allege that they are entitled to receive contribution and if the defendant, i.e Kisan, fails to pay the amount due from him by way of contribution, the amount should be recovered by enforcing the charge, which, the plaintiffs have under Section 100 of the Transfer of Property Act.

2. The defendant contested the suit on various grounds. So far as this appeal is concerned, the only important contention is that the suit is barred by limitation.

3. Both the trial Court as well as the lower appellate Court have held that the present suit is barred by limitation under Article 132 of the Limitation Act, the starting point of limitation being the date on which the mortgage amount became payable. It is against this decision that the present second appeal is filed by the plaintiffs.

4. It is common ground that Article 132 of the Limitation Act applies to the present suit. The only dispute is what would be the starting point of limitation. The starting point of limitation mentioned in Article 132 is 'when the money sued for becomes due'. On the allegations in the plaint, it is quite clear that the present suit is one for contribution and not for recovery of an amount due under a mortgage. If this is a suit for contribution prima facie the cause of action would take place when the plaintiffs paid the amount due to the mortgagee and redeemed the mortgage. It could not in any case be earlier than that. It is obvious that unless the amount due under the mortgage was paid and the mortgage was redeemed by the plaintiffs, there could be no question of the plaintiffs claiming contribution. The defendant, however, contends that under Section 92 of the Transfer of Property Act a person in the position of the plaintiffs is subrogated to the rights of the mortgagee, he has the same rights as the mortgagee, hence the suit must be within twelve years from the date when the amount due under the mortgage became payable.

5. On behalf of the respondent-defend ant Mr. Mudholkar relies on a decision of the Privy Council, viz. Mahomed Ibrahim Hossain Khan v. Ambika, Persad Singh, 39 Ind App 68 (PC). The observations relied upon are as follows:

'But as the Rs. 12,000 were under the zarpeshgi deed of November 20, 1874, repayable in Jeth 1294 Fasli (September, 1887) and this suit was not brought until September 22, 1900, the claim of the plaintiffs to priority is barred by Article 132 of the Second Schedule of the Indian Limitation Act, 1877, and all that they are entitled to so far as the 5 annas 4 pies share in Fatehpur-Lawaech is concerned is a decree entitling them to redeem the mortgage of January 7, 1888, on payment to the legal representatives of Lalji Mahto of the amount of the principal and interest in respect of which the 5 annas 4 pies share in Fatehpur Lawaech was sold to him under the decree for sale in Gajadbur Mahto's suit of September 8, 1888.'

Relying on these observations, it is urged that the plaintiffs have no higher rights than the original mortgagee. The mortgage amount became payable on 15-1-40, hence the present suit filed after more than twelve years, i.e., on 13-4-1955, must be held to be barred, by limitation. Mr. Kalele for the plaintiffs seeks to distinguish the abovesaid case on the ground that it was a suit by a person who had redeemed an earlier mortgage against the subsequent mortgagees, hence, according to Mr. Kalele, different considerations would prevail. Mr. Kalele contends that that was not a suit against one, who was in the position of a mortgagor and thus bound to redeem. That case is also sought to be distinguished on the ground that in that case the suit was barred in any event, even if it was held that the starting point was the date of the payment by the person who was subrogated. The above-quoted observations will indicate that the money due under the mortgage, that was redeemed became payable in September 1887. It was, in fact, paid in February 1888. The suit was filed on 22nd September 1900. Thus the suit was beyond twelve years even from the date of payment. From the judgment in the above mentioned Privy Council case, it appears that the question as to what would be the starting point of limitation in a suit for contribution did not arise before their Lordships of the Privy Council. There seems to be no discussion in the judgment on such a question. All that their Lordships observed is that a person claiming subrogation under Section 92 of the Transfer of Property Act has the same rights as the original mortgagee. In my opinion, the above-mentioned Privy Council decision does not cover the point that arises for consideration in the present-appeal.

6. Mr. Mudholkar also relics on Balchand v. Ratanchand The above-mentioned Privy Council case was referred to in this decision. After referring to that case, the learned Judge observes:

'In view of this clear exposition of the law, it cannot be contended that the right to enforce the charge acquired by subrogation arises as a fresh right on payment of the prior mortgage-debt.'

On the same page, the learned Judge observes:

'As pointed out in Sibanand Misra v. Jagmohan Lall ILR I Pat 780 : AIR 1922 Pat 499 subrogation is in most cases rather an additional remedy than an additional right and may exist concurrently with and as a further security to the right to a simple action for reimbursement.' It is, however, important to note that at p. 401 (of ILR Nag) : (at p. 113 of AIR) the learned Judge observes:

'That right arises not under Section 92 of the Transfer of Property Act but under Section 82 and Section 95 read with Section 100 of that Act. (See Ahmad Wali Khan v. Shamshul Jahan Begam ILR 28 All 482, Aziz Ahamad Khan v. Chote Lal : AIR1928All241 and Kotappa v. Raghavayya, ILR 50 Mad 6261 AIR 1927 Mad 631. To recover contribution, Balchand would have a fresh period of limitation from the dales on which he made the payment, i.e., in 1937 and 1938.' Thus this decision does not go against the plaintiffs. On the other hand, some of the observations indicate that the right of claiming contribution is a right independent of subrogation and that it is an additional right. Mr. Kalele for the plaintiffs relies on a decision of Allahabad High Court, viz. : AIR1928All241 . The learned Judges formulated the question for consideration as follows:

'The question before us is whether Chhote Lal, having paid the decretal amount, not as a puisne encumbrancer, but as a purchaser of thevillage Nagla, was entitled to exact contribution from the remaining 9 properties; and whether this claim for contribution is within time.' In this case also, the defendants' contention was that the person making the payment Chhotelal was subrogated to the position of the original mortgagee, the suit was virtually to enforce the mortgagee's rights and the suit having been filed more than twelve years from the date the mortgage amount became payable, it was barred by limitation. The important observations are at pp. 579, 580 and 582 (of ILR All): (at pp. 244 and 245 of AIR) which are as follows:

'The doctrine of subrogation has been applied for the benefit of a party making the payment in suitable cases and cannot be applied to the disadvantage of that party. Where a suit is brought to enforce a contribution, which is based on the maxim 'equity is equality', it is only partially right to say that the party making the payment and relieving the co-mortgagor's property from burden is subrogated to the position of the mortgagee. It is clear that he cannot enforce the right of the mortgagee to sell all or any of the properties to realise the entire money recoverable by him. The mortgagee would be entitled, without any restriction, to enforce the payment of the entire mortgage money against any one of the properties he might choose to proceed against; but the mortgagor seeking contribution has to exempt his own property (if it has not been sold) and must bear a proportionate part of the mortgage money. Then, he has to Split up his claim and must ask for a proportionate payment from the owners of the remaining properties. Properties would contribute, some more and others less, according to the respective values of the properties. Thus it is clear that a co-mortgagor seeking contribution is not exactly in the same position, in all respects, as the mortgagee whom he has redeemed....

There can be no doubt that where a right of contribution exists, that right comes into play only when a payment is made. It would be absurd to say that although the right to exact contribution arose in Chhote Lal on the 19th of July, 1916, the limitation against him had begun to run on the 23rd of September, 1899, (the date of the mortgage), and that it had already been time-barred on the 23rd of September, 1911, i.e., even before the right accrued. The right of contribution in India, where the Transfer of Property Act is enforced, arises under the Provisions of Section 82 of the Act. Under the view expressed by their Lordships of the Privy Council in the case of ILR 28 All 482 quoted above, Section 95 is equally applicable. On the satisfaction, therefore of a mortgage by a co-mortgagor, a charge arises in favour of the person making the payment and that charge can be enforced under Section 100 of the Transfer of Property Act. Thus we have the clearest sanction for holding that the right to enforce arose on payment and, under Article 132 of the Limitation Act, the person making the payment has 12 years within which to enforce the charge.'

7. The above-quoted observations make it quite clear that the right of contribution is quite independent of the right of subrogation conferred by Section 92 of the Transfer of Property Act. Thus while considering the question of limitation in such cases, the important point for consideration would be 'what is the nature of the claim in the suit?' That is to be decided on the allegations in the plaint. If the allegations in a plaint indicate that it is a suit to enforce rights similar to those of the mortgagee, in that case it is obvious that the plaintiff cannot have higher rights than the mortgagee, even though the plaintiff may have a right of subrogation under Section 92 of the Transfer of Property Act. If, however, the allegations in the plaint indicate that the plaintiff is seeking to enforce his right to claim contribution, along with his right to enforce the charge arising in his favour under Section 100 of the Transfer of Property Act, the starting point of limitation would obviously be different and that would be the date on which the plaintiff in such a suit made payment and redeemed the mortgage. With respect I agree with the view and the reasoning for the same adopted by Allahabad High Court in : AIR1928All241 . Mr. Kalele also referred to Rameswar Prasad v. Ramnath Khemka, : AIR1950Pat174 and Brij Bhukhan v. Bhagwan Datt . These decisions also emphasize the dissatisfaction mentioned by me above.

8. In the present case, on the allegations in the plaint it is quite clear that the plaintiffs are claiming a right of contribution. They also seek to enforce the charge that arises in their favour under Section 100 of the Transfer of Property Act. In view of this, I hold that the starting point of limitation under Article 132 of the Limitation Act would be the date on which the plaintiffs redeemed the mortgage, viz. 16th April 1943. Hence the present suit filed, on 13-4-55 must be held to be within limitation.

9. The lower appellate Court in paragraph 21 of its judgment refers to Suwabai v. Krishna Ravji and observes that the decision is binding on it. It, therefore, held the suit to be barred by limitation and dismissed it. The learned Judge, who decided the above-mentioned case viz., referred to the earlier decision, viz. ILR (1942) Nag 393: (AIR 1942 Nag in) and held that the suit was barred by limitation. At p. 257 he, however, observes:

'It follows that although a suit for contribution would have been within time by reason of the fact the present suit was filed within 12 years from 28-9-1929, the date on which the plaintiff deposited the decretal amount in C. S. No. 37 of 1928,.....'

These observations indicate that the learned Judge held the suit to be time-barred, as he took the view that it was not a suit for contribution. In my opinion, the lower appellate Court has misread that decision.

10. With regard to interest, the plaintiffs in their plaint have claimed interest at Rs. 12/- per cent per annum from the date of payment. .The plaintiffs would not, however, be entitled to interest. They do not seem to have given notice before suit claiming contribution with interest, hence they would be entitled to interest only from the date of the suit. In my opinion, reasonable rate of interest would be Rs. 6/- per cent per annum.

11. For reasons indicated above, I allow the appeal, set aside the decree of the lower appellate Court and decree the plaintiffs' claim to the extent of Rs. 400/- with future interest from the date of the suit at Es. 6/- per cent per annum. There shall be a charge for the decretal amount on survey No. 116/1. Defendant shall pay plaintiffs two-third costs throughout. In view of my conclusion recorded above the cross-objections do not survive, they are dismissed.

12. Appeal allowed.


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