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Nathmal Motiram Marwadi Vs. Nilkanth Vishnu Kavishwar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 855 of 1929
Judge
Reported inAIR1933Bom25; (1932)34BOMLR1519
AppellantNathmal Motiram Marwadi
RespondentNilkanth Vishnu Kavishwar
Excerpt:
.....sahai (1925-1926) i.l.r. 6 pat. 513, followed.;sayamali molla v. anisuddin molla (1929) 33 c.w.n. 1067, dissented from. - - as i am clearly of opinion that any rights which the appellants may have to redeem would not give them a right to possession, and as they do not desire to redeem without possession, i think that the appeal must be dismissed with costs, one set payable to respondents nos......his right to enforce payment of his mortgage money is barred under article 132, nevertheless his right as mortgagee is not barred under section 28 of the indian limitation act, that is to say, the remedy is barred, but not the right, and he says that one of his rights as mortgagee is to redeem a prior mortgage, that right being given by section 75 of the transfer of property act, and that a right to redeem is not barred under article 132, but can only be barred under article 148, which gives sixty years. we were referred to a considerable number of cases upon the question whether a puisne mortgagee whose right to enforce his mortgage is barred under article 132 is nevertheless still entitled to redeem a prior mortgage. in support of the proposition that he is so entitled we were.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a second appeal from the decision of the First Class Subordinate Judge of Nasik. We have heard an elaborate argument, but really the point involved is in a very small compass. It is not necessary to state in detail how the position of the parties arises. It is sufficient to state what that position is. Defendants Nos. 1 and 2, who are the principal respondents on the appeal, acquired certain first mortgages from the mortgagor, who is defendant No. 3. The plaintiffs acquired subsequent mortgages. There were also mortgages subsequent to the plaintiffs' with which we are not concerned. Defendants Nos. 1 and 2 as firstmortgages brought a suit to enforce their mortgage, and in that suit they acquired the property. But they omitted to make the plaintiff's or their predecessors-in-title parties, and, therefore, the plaintiffs' rights under their subsequent mortgages were in no way affected by the sale of the property to the firstmortgages. The plaintiffs' right to enforce their mortgages has become barred under Article 182 of the Indian Limitation Act. The plaintiffs now bring a suit in which they seek to redeem the first mortgages of defendants. Nos. 1 and 2. Mr. Pendse's argument is that although his right to enforce payment of his mortgage money is barred under Article 132, nevertheless his right as mortgagee is not barred under Section 28 of the Indian Limitation Act, that is to say, the remedy is barred, but not the right, and he says that one of his rights as mortgagee is to redeem a prior mortgage, that right being given by Section 75 of the Transfer of Property Act, and that a right to redeem is not barred under Article 132, but can only be barred under Article 148, which gives sixty years. We were referred to a considerable number of cases upon the question whether a puisne mortgagee whose right to enforce his mortgage is barred under Article 132 is nevertheless still entitled to redeem a prior mortgage. In support of the proposition that he is so entitled we were referred to the cases of Priya Lal v. Bohra Champa Ram I.L.R. (1922) All. 268 and MussammatRamjhari Koer v. Lala Kashi Nath Sahai I.L.R. 1925 Pat. 813 and in support of the contrary view we were referred particularly to a dictum of Sir George Rankin in Sayamali Molla v. Anisuddin Molla (1929) 33 C.W.N. 1067. I am myself rather disposed to think that Mr. Pendse's contention on that point is right, and that a mortgagee whose right to enforce his mortgage is barred under Article 132 may nevertheless still be entitled to redeem a prior mortgage under the power conferred upon him by Section 75 of the Transfer of Property Act. But the point in this case is really of purely academic interest. The appellants' real object is this, They think that if they succeed in redeeming the prior mortgages of defendantsNos. 1 and 2, they will get possession of the property from defendants Nos. 1 and 2, and having got possession, they will then hold the property as security, not only for the prior mortgagee, but also for the time-barred second mortgages, They rely on the case ofRangappa Kondappa v. Vithu Krishnaji I.L.R. (1923) Bom. 652 : 25 Bom. L.R. 278 in support of that right which they claim. But the fallacy in the appellants' case lies in this. Defendants Nos. 1 and 2 are not in possession as mortgagees. Their mortgage was a simple mortgage, and they were not entitled to possession. At the time when they brought the property to sale the mortgagor was in possession, and the effect of the purchase by the defendants in the suit to which the plaintiffs were not parties was that the defendants acquired the interest of the mortgagor, Mr. Pendse's contention is that after the sale defendants Nos. 1 and2 remained mortgagees but with the right of possession which they had acquired from the mortgagor, that is to say, he seeks to take ad vantage of a sale in a suit to which he was not a party by claiming that the effect of it was to give the mortgagees as such the right of possession which they did not otherwise possess. In my opinion that was not the effect of the sale. The effect of the sale was either that defendants Nos. 1 and 2 remained in possession as holders of the equity of redemption as against the plaintiffs the second morgagees, or the first mortgages were extinguished being, so to speak, merged in the equity of redemption, in which case the plaintiffs' mortgages would have become first mortgages, But that position will not help the plaintiffs, because their right to enforce their mortgages is barred.

2. I am emphatically of opinion that the result of the transaction was not to merge the interest of the first mortgagees and the equity of redemption in such a sense as to make the first mortgagees mortgagees in possession. Therefore, if the appellants have a right to redeem, their only right is on payment to the firstmortgagees, defendants Nos. 1 and 2, of what is due on their first mortgage, to take a transfer of the security but without any right to possession. It is obvious that redemption in that sense would be of no assistance to the appellants, since the most they could hope for would be to get their money back by enforcing the first mortgages. They would still be in the difficulty that their second mortgages are statute-barred, and they would have to take steps toenforce them and would be met by the statute. As I am clearly of opinion that any rights which the appellants may have to redeem would not give them a right to possession, and as they do not desire to redeem without possession, I think that the appeal must be dismissed with costs, one set payable to respondents Nos. 1 to 3, and another sot to respondent No. 12.

Nanavati, J.

3. I agree.


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