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Fozmal Bhutaji Vs. Shridhar Vithal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case Number O.C.J. Suit No. 166 of 1941
Judge
Reported inAIR1946Bom499; (1946)48BOMLR327
AppellantFozmal Bhutaji
RespondentShridhar Vithal
Excerpt:
transfer of property act (iv of 18s2), sections 58(e), 67(a) - english mortgage-possession of property by mortgagee-mortgagor remaining in possession as tenant-mortgagor paying rates and taxes-suit for foreclosure and sale-period of limitation-indian limitation act (ix of 1&08), articles 141, 132-hindu law-debt by father-antecedent debt--liability of sons to pay.;an english mortgage, under section 58(e) of the transfer of property act, 1882, presupposes that there is an absolute conveyance and transfer of all the interest of the mortgagor in the mortgaged property to the mortgagee subject to the proviso for redemption. such absolute transfer of ownership means that the mortgagee is entitled to possession of the property as a necessary corollary of the right of ownership. however, a.....bhagwati, j.1. two brothers, one vithal ramchandra parulkar and another vishnu. ramchandra parulkar, had monetary dealings with a firm of money lenders by name himmatmal manji & co. commencing from sometime prior to november 17, 1922v the account in respect of these monetary dealings was maintained in the joint names, of vithal ramchandra parulkar and vishnu ramchandra parulkar in the books of account of messrs. himmatmal manji & co. this account was adjusted on or about november 17, 1922, when a sum of rs. 25,150 was found due and owing by the two brothers to the firm of messrs. himmatmal manji & co. as of that date. on the same date the adjustment was recorded in the books of account of messrs. himmatmal manji & co. showing the said sum of rs. 25,150 as due by both of them 'personal.....
Judgment:

Bhagwati, J.

1. Two brothers, one Vithal Ramchandra Parulkar and another Vishnu. Ramchandra Parulkar, had monetary dealings with a firm of money lenders by name Himmatmal Manji & Co. commencing from sometime prior to November 17, 1922V The account in respect of these monetary dealings was maintained in the joint names, of Vithal Ramchandra Parulkar and Vishnu Ramchandra Parulkar in the books of account of Messrs. Himmatmal Manji & Co. This account was adjusted on or about November 17, 1922, when a sum of Rs. 25,150 was found due and owing by the two brothers to the firm of Messrs. Himmatmal Manji & Co. as of that date. On the same date the adjustment was recorded in the books of account of Messrs. Himmatmal Manji & Co. showing the said sum of Rs. 25,150 as due by both of them 'Personal debts to the account of both till today, November 17, 1922.' Signatures of both of them were appended at the foot of this adjustment. On the same day it was agreed between the firm of Messrs. Himmatmal Manji & Co. and the two brothers that they should execute in consideration of a sum of Rs. 17,500, being part of the said sum of Rs. 25,150 found due by them to the firm at the foot of that adjustment, a mortgage of their immoveable property situate at Bassein and as a part and parcel of that adjustment an indenture of mortgage was executed by the two brothers in favour of the three partners of the firm of Messrs. Himmatmal Manji & Co., viz. Fojmal Bhutaji, Joharmal Fuaji and Pokhraj Himmatmal, mortgaging their property situate at Bassein to secure repayment of the said sum of Rs. 17,500 with interest thereon as stipulated therein. As regards the balance of Rs. 7,650 which remained over out of the said sum of Rs. 25,150, the two brothers executed on November 17, 1922, an agreement whereby they agreed to pay the said sum in the manner therein mentioned. A post-dated cheque for the said sum of Rs. 7,650 was given by the two brothers to the firm of Messrs. Himmatmal Manji & Co., and in default of their honouring the cheque on the due date thereof, the two brothers agreed to execute in favour of Messrs. Himmatmal Manji & Co. a mortgage of another property belonging to them and situate at Ratnagiri. I may state that the said cheque was not honoured, the two brothers executed in favour of Messrs. Himmatmal Manji & Co. a mortgage of their property at Ratnagiri and the said amount was recovered by Messrs. Himmatmal Manji & Co. by subsequently selling that property.

2. The due date for repayment of the amount under the indenture of mortgage dated November 17, 1922, was November 16, 1923. The two brothers failed and neglected to pay the amount on the due date for repayment thereof and failed and neglected to make any payment of interest either. The family consisted of four brothers, Vithal and Vishnu the two brothers who had executed this mortgage and two others Shankar Ramchandra Parulkar and Bhaskar Ramchandra Parulkar who were at their native place. In the year 1929 a suit was filed by Shankar being suit No. 299 of 1929 in the Court at Deogad for a partition of the property, the subject-matter of the mortgage. The firm of Messrs. Himmatmal Manji & Co. were made co-defendants in that suit inasmuch as it was sought to be declared in that suit that the mortgage which had been executed of this property by Vithal and Vishnu in Bombay in favour of Messrs. Himmatmal Manji & Co. was not binding on Shankar and the other brother Bhaskar. This, suit was contested inter alia by Messrs. Himmatmal Manji & Co. Owing, however, to insufficiency of evidence put forward on behalf of Messrs. Himmatmal Manji & Co. the Court came to a conclusion adverse to their contentions. It was declared in the decree which was passed in that suit No. 299 of 1929 in the Deogad Court on February 10, 1931, that Vithal and Vishnu were each of them entitled to a one-fourth share in the property, the subject-matter of the mortgage dated November 17, 1922, and that the mortgage executed by Vithal and Vishnu did not bind the interest of the other members of the family, viz. Shankar and Bhaskar. Messrs. Himmatmal Manji & Co. filed an appeal against this decree which was dismissed by the Appeal Court on June 17, 1933. They filed a second appeal in the High Court here which also was dismissed by the High Court on April 12, 1937, thus confirming the decree which was passed by the Court at Deogad on February 10, 1931.

3. Vishnu was adjudicated an insolvent on December 21, 1934, and defendant No. 6 herein is the Official Assignee of the estate of Vishnu. Vithal died in about 1936 leaving him surviving his five sons, defendants Nos. 1, 2, 2A, 3 and 4, and his widow defendant No. 5 herein, Defendants Nos. 1 to 5 were members of a joint and undivided Hindu family along with the deceased Vithal and they have been impleaded in this suit as the surviving members of the joint family constituted by Vithal and his branch. On the death of Vithal whatever right, title and interest he had in the immoveable property, the subject-matter of the mortgage dated November 17, 1922, survived over to the surviving members of the joint family. The fact that defendant No. 5 is the widow makes no difference to this position, because she would be entitled ordinarily to a right of residence and maintenance out of the joint family properties or under Deshmukh's Act to a share equal to that of a son out of the property belonging to the family. Nothing has been suggested in the arguments on behalf of defendant No. 1 that there is anything wrong in the plaintiff asking for a decree against the one-fourth share in the said immoveable property which belonged to the branch, of Vithal.

4. The monies due under the indenture of mortgage dated November 17, 1922, were not paid either wholly or in part, with the result that in the year 1935 a suit was filed by the then partners of the firm of Messrs. Himmatmal Manji & Co. against inter alia Vithal Ramchandra Parulkar and Vishnu Ramchandra Parulkar for the recovery of the monies due at the foot thereof. In so far as the second appeal which had been filed in the High Court against the decree passed by the Court at Deogad in suit No. 299 of 1929 was pending, no steps seem to have been taken to prosecute that suit. When ultimately the High Court confirmed the decree of the Deogad Court dismissing the second appeal on April 12; 1937, the plaintiffs in suit No. 1938 of 1935 seem: to have applied their mind to the position. They took about two years and a quarter to arrive at a decision, but ultimately they made an application to withdraw from that suit with liberty to file a fresh suit on the same cause of action against such parties as they might be advised. The result was the present suit which was filed by the surviving partners of Messrs. Himmatmal Manji & Co., viz, Fozmal Bhutaji and Pokhraj Himmatmal as plaintiffs Nos. 1 and 2 respectively, against defendants Nos. 1 to 5 the surviving members of the joint family constituted by Vithal and his branch and defendant No. 6, the Official Assignee, the assignee of the estate of Vishnu Ramchandra Parulkar, to realise the mortgage security. As Rs. 17,500 only was the principal secured by this indenture of mortgage, the plaintiffs could not recover, having regard to the rule of Damduppat which applied, any more than Rs. 17,500 as and by way of interest, with the result that the mortgage decree which was asked for in this suit was for an aggregate sum of Rs. 35,000 made up of the principal sum of Rs. 17,500 and interest in the like amount.

5. When the plaint came to be filed, not much attention seems to have been devoted to the question whether the right, title and interest of the surviving; members of the joint family belonging to Vithal's branch could be made liable for the payment of the debt due under this indenture of mortgage. Nothing was stated in the plaint as to how the whole of the one-fourth share in this property belonging to Vithal's branch could be made liable for the payment of this debt, the only allegation, which was made in para, 11 of the plaint being that the shares of the said Vithal Ramchandra and Vishnu Ramchandra which are one-fourth each in the said property were and are validly mortgaged to the plaintiffs for repayment of the said sum; and the prayers of the plaint prayed inter alia for a declaration that the right, title and interest of the said Vithal Ramchandra and Vishnu Ramchandra are validly mortgaged to the plaintiffs as security for the said sum; and that the usual preliminary mortgage decree should be passed in respect of the right, title and interest of the said Vithal Ramchandra and Vishnu Ramchandra in the said mortgaged property. It was on this position that at the hearing two issues were raised on behalf of defendant No. 1, viz.:

(1) Whether the plaint discloses any cause of action against the first defendant and

(2) Whether the suit was maintainable against the first defendant ?

6. On the death of Vithal, as I have already stated, his right, title and interest in that ammoveable property survived over to the surviving members of the joint family and there was nothing left as Vithal's right, title and interest which could ever be the subject-matter of any decree as prayed for in prayers (b) and (c) of the plaint. In spite of strenuous arguments of Mr. S. M. Shah to justify the plaint as it then stood, I ruled that the plaintiffs would not be entitled to any relief as prayed for by them in the plaint, and that if any relief was asked for by the plaintiffs against the share of Vithal's branch in that property, it should be supported by proper averments in that behalf contained in the body of the plaint. It was after that ruling was given by the Court that Mr. S. M. Shah ultimately applied for the amendment of the plaint, which amendment I did grant. The plaint was accordingly amended and as it now stands it seeks to hold the right, title and interest of the surviving members of the joint family constituted by Vithal and the members of his branch of the family as liable by reason of the fact that the debt which was secured by the indenture of mortgage dated November 17, 1922, was an antecedent debt having been incurred by Vitha Ramchandra prior to the execution of the said indenture of mortgage and that therefore the right, title and interest of the sons, defendants Nos. 1, 2, 2A, 3 and 4 and also of the widow, who as I have already stated is in the same position as the sons, would be bound by the alienation of the immoveable property belonging to that branch of the family for the antecedent debt of Vithal Ramchandra Parulkar.

7. Even though in the body of the plaint it had been mentioned that Vithal Ramchandra and Vishnu Ramchandra borrowed the monies from Messrs. Himmataial Manji & Co. as members of the joint family and that the said monies were borrowed for the necessities of the said joint family, and issues Nos. 4 and 5 were raised by defendant No. 1 on the basis of those contentions, it was conceded by Mr. S. M. Shah for the plaintiffs at the hearing that he did not rely upon these allegations in support of his claim. He accepted the finding of the Court at Deogad that there was no joint family constituted by the four brothers and that Vithal and Vishnu had borrowed these monies not on behalf of any joint family but on behalf of themselves and that only their right, title and interest in the property, the subject-matter of the indenture of the mortgage dated November 17, 1922, stood mortgaged to secure the repayment of the said sum of Rs. 17,500 and interest, Mr. S. M. Shah also did not contend nor lead any evidence before me to prove that the monies which Vithal Ramchandra Parulkar had borrowed were required by him for the purpose of the joint family constituted by himself, his sons and the widow, or that he borrowed these monies for the necessities of his joint family. He merely relied upon the fact that the debt of Rs. 17,500 which was secured by this indenture of mortgage was. an antecedent debt in respect of which the right, title and interest of all the members of the joint family, viz. defendants Nos. 1 to 5, would be liable.

8. The two main questions which I have to decide in this suit are:

(1) Whether the debt secured by this indenture of mortgage dated November 17, ,1922, was an antecedent debt and

(2) Whether the suit is barred by the law of limitation ?

9. As regards the first question, whether the debt secured-by this indenture of mortgage dated November 17, 1922, was an antecedent debt, the position is quite clear on the evidence as it has been led before me.

(After discussing the evidence on this point, his Lordship arrived at the following conclusion.]

10. On this evidence before me, therefore, I have come to the conclusion that this debt of Rs. 17,500 was an antecedent debt, a debt which had been incurred by Vithal Ramchandra Parulkar and Vishnu Ramchandra Parulkar prior to November 17, 1922, and was, therefore, within the meaning of the authorities which have been cited before me, viz. Brij Narain v. Mangla Prasad (1923) L.R. 51 I. A. 129: 26 Bom. L.R. 500 and the observations of Lord Dunedin at page 139 thereof, a debt antecedent in fact as well as in time, If that was so, the right, title and interest of the sons in that property and consequently of defendants Nos. 1 to 5 herein was validly mortgaged by Vithal Ramchandra Parulkar to secure the antecedent debt of Rs. 17,500 which he owed to Messrs. Himmatmal Manji & Co. I, therefore, hold on this question that the debt which was secured by this indenture of mortgage dated November 17, 1922, was an antecedent debt and the alienation of the one-fourth share right, title and interest of his branch in the family property at Bassein which was the subject-matter of this indenture of mortgage was binding on the right, title and interest of defendants Nos. 1 to 5 herein.

11. The next question which I have to consider is whether the suit is barred by the law of limitation. In that connection I have got to consider first what is this mortgage. Is it an English mortgage as is contended by the plaintiffs or is it a mortgage by conditional sale as is contended by defendant No. 1 Mr. S. M. Shah for the plaintiffs,, after referring me to the definition of an English mortgage which is to be found in Section 58(e) of the Transfer of Property Act which lays down that there are three essential ingredients in an English mortgage, viz. (1) that the mortgagor binds himself to repay the mortgage-money on a certain date, (2) that the mortgagor transfers the mortgaged property absolutely to the mortgagee, and (3) that such absolute transfer is made subject to a proviso that the mortgagee will re-transfer it to the mortgagor upon payment of the mortgage money as agreed on the date on which the mortgagor binds himself to pay the sum, drew my attention to the relevant terms of the indenture of mortgage, exhibit C herein. He pointed out that there was a covenant for repayment of the sum of Rs. 17,500 and interest due thereupon, in that the mortgagors covenanted that they the mortgagors, on November 16, 1923, called the due date, would pay to the mortgagees in Bombay the said sum of Rs. 17,500 with interest for the same in the meantime at the rate therein stipulated. He further pointed out that there was an absolute transfer of the mortgaged property by the mortgagors to the mortgagees in that in pursuance of the agreement and for the consideration therein mentioned the mortgagors did thereby grant, release, convey and assure unto the mortgagees all that piece or parcel of land etc. being the particular description of the property mortgaged thereby, and to hold the said hereditaments and premises thereby granted or expressed so to be unto and to the use of the mortgagees subject to the proviso for redemption next therein contained. He lastly pointed out that there was in the indenture of mortgage a proviso that the mortgagees should reconvey the property to the mortgagors upon payment of the said mortgage-monies, in that if the mortgagors pursuant to the covenant in that behalf paid to the mortgagees the said sum of Rs. 17,500 with interest for the same etc., then and in such case the mortgagees should upon the request and at the costs, charges and expenses of the mortgagors reconvey the hereditaments and premises thereto granted or expressed so to be unto and to the use of the mortgagors or as they should direct. These were, Mr. S. M. Shah contended, enough to satisfy the requirements of Section 58O) of the Transfer of Property Act and they went to show that the indenture of mortgage dated November 17, 1922, was an English mortgage executed by the mortgagors in favour of the mortgagees. Prima facie this is the position. It was, however, urged by Mr. Desai that there was no absolute transfer of the property by the mortgagors to the mortgagees in that possession of the property was not given by the mortgagors to the mortgagees, and that the possession was to remain with the mortgagors until they committed default, and in exercise of the power to enter into possession reserved to the mortgagees in that behalf, the mortgagees entered into possession of the property. He further pointed out that the mortgagors covenanted under the terms of this indenture of mortgage to pay the rates and taxes as and when they accrued due in respect of this property which the mortgagees would be bound to pay in the event of there being an absolute transfer of property from the mortgagors to the mortgagees. He relied upon these two provisions contained in the indenture of mortgage in support of his contention that there was no absolute transfer of this property from the mortgagors to the mortgagees but that there was some transfer of property which not being absolute would not satisfy the requirements of Section 58(e) of the Transfer of Property Act and would therefore not constitute an English mortgage as contended by the plaintiff. In support of this contention of his, he relied upon the decision of the Calcutta High Court reported in Satya Charan v. Ramkinkar : AIR1935Cal659 . The facts of that case were that a suit had been filed by the lessor of certain collieries against the mortgagee thereof from the lessee. The lessee was prima facie bound to pay the rent and royalties to the lessor. In so far, however, as the assignment from the lessee to the mortgagee was an assignment by way of mortgage and contended to be one in the English form of mortgage, it was contended on behalf of the lessor that the mortgagee having taken an assignment of the lessee's interest therein by way of an English mortgage, he, the mortgagee, would be bound to pay the rent and royalties to the lessor, he having acquired the whole of the right, title and interest of the lessee in the property which was the subject-matter of the lease. In both these assignments, however, it was expressly stipulated that the mortgagor, i.e. the lessee, would continue to be liable to pay the rent and royalties to the lessor. The possession also was stipulated under the terms of the assignments to continue with the lessee. On the strength of these provisions in the indenture of assignment it was sought to be argued that the assignments were not by way of English mortgages but were something which not being absolute transfers of the whole of the interest of the lessee in the subject-matter of the lease did not constitute the mortgagee the absolute owner thereof, with the result that the mortgagee could not be said to have become liable by reason of those assignments to pay the rents and royalties to the lessor. It was, having regard to these contentions of the parties in that suit, that the terms of these two assignments which were the subject-matter of the construction by the Court there came to be considered by the Court. There were two decisions of the Calcutta High Court which had been cited in the course of the arguments in that suit. The one was Bengal National Bank Ltd. v. Janaki Nath Roy I.L.R (1927) Cal. 813, where it has been held that a mortgagee in an English form of mortgage, in whom the entire interest of the mortgagor is transferred, and who becomes the owner of the mortgaged property, to all intents and purposes, takes upon himself the liability for rent. The other was Balakrishna Pat v. Jagannath Marwari I.L.R (1932) Cal. 13 where the Court consisted of Mukerji and Guha JJ., and Mukerji J. who was a party to this decision expressed an opinion that the mortgagee under similar circumstances even though the form of the assignment was an assignment by way of an English mortgage was not liable to the lessor for the rent, the decision therein having been reached on the ground that, at least for the purposes of that contention it could not be stated that an English mortgagee was an absolute transferee of all the interest of the mortgagor in the mortgaged property. I do not feel inclined to discuss all these decisions at any particular length. It suffices for me here to say that each decision which is arrived at on the construction of a particular document before the Court has got to be dealt with on its own merits, and no construction of a particular document before the Court is necessarily a guide for another Court when a similar document comes to be considered by the other Court. I do not feel therefore at all fettered in the consideration of the document before me and the construction thereof by any observations that might have been made by the learned Judges of the Calcutta High Court in that decision reported in Satya Chandra v. Ramkinkar. I may, however, observe that the question which had to be considered by the learned Judges of the Calcutta High Court there was whether the reservation which had been made under the terms of the two assignments which were before the Court, viz. that the mortgagor, i.e. the lessee, was to continue to be liable for payment of the rent and royalties to the lessor, did make any difference to the position of the mortgagee as it was contended on behalf of the plaintiff therein. That being the sole question for the determination of the Calcutta High Court, the Court, on a construction of the various provisions of the indentures of assignment before it, came to the conclusion that even though an English mortgagee might be held to be, by reason of the absolute transfer of the interest in the property by the mortgagor to him, liable for the rent and royalties, on the facts of the particular case, the learned Judges did not feel themselves satisfied about the mortgagee being liable for the payment of the rent and royalties under the terms of the indentures of assignment that came for construction before them. This is essentially, in my opinion, a construction of the document as it. was before the Court, and it does not lay down any general principle for construction of similar documents which might come for construction before any other Court. On the other hand, there are these considerations which have got to be borne in mind before I arrive at a conclusion that the document before me is not an English mortgage. Prima facie the provision in the indenture of mortgage which I have referred to before shows that there was an absolute conveyance and transfer of all the interest of the mortgagors in the mortgaged property to the mortgagees only subject to the proviso for redemption, which, however, is allowed by the very terms of Section 58(e) of the Transfer of Property Act. Prima facie absolute ownership would include also the right to possess, the right to realise the rents and profits of the property, the right to sell, etc. If any authority were needed for this proposition, it is to be found in the observations of Mahmood J. in the full bench decision reported in Indar Sen v. Naubat Singh I.L.R (1885) All. 553. If there was an absolute transfer of ownership of this property by the mortgagors to the mortgagees, the mortgagees would no doubt be entitled to possession as a necessary corollary of the right of ownership which was transferred to them. Would the stipulation contained in the indenture of mortgage in this behalf that the mortgagor would until he committed default in payment of the principal or the interest as stipulated therein remain in possession of the mortgaged property make any difference to the position Would the stipulation also as regards the rates and taxes being payable by the mortgagor, even though the absolute ownership in the property was transferred to the mortgagee in which event the mortgagee would be the person liable to pay the rates and taxes of the property, make a difference to the position Would these two provisions as contained in the indenture of mortgage detract from the absolute transfer of the property from the mortgagors to the mortgagees and constitute something less than an absolute transfer which is required for an English mortgage under Section 58(e) of the Transfer of Property Act If once we start with this position that there was an absolute transfer by the very terms of the indenture of mortgage of the property from the mortgagors to the mortgagees, there is nothing in these two provisions which are contained therein, viz. the mortgagors' retaining possession of the property until default committed and being liable to pay the rates and taxes to the proper authorities, which detracts from the absolute nature of the transfer. The possession would be the possession of the mortgagee, but under the terms of the indenture of mortgage the mortgagee would allow the mortgagors to retain possession of the property only until default was committed by the mortgagee in payment of the principal and the interest stipulated in the indenture of mortgage. The right was reserved to the mortgagee in the event of such default committed to enter into possession of the property which would merely be a confirmation of his right to possession which he had for the time being parted with in favour of the mortgagor. If the mortgage was an English mortgage whereby the mortgagee became the absolute owner of the property, he might be in certain events liable to pay the rates and taxes himself to the proper authorities; but that does not mean that if under the terms of the mortgage, the mortgagor also remained or continued liable to pay the rates and taxes to the proper authorities, the liability of the mortgagee to pay these rates and taxes was thereby in any manner diminished. What we are concerned with here are the stipulations as between the mortgagor and the mortgagee, and in so far as the mortgagee envisaged the possibility of the mortgagor on and after the due date trying to redeem the property from him on payment of the monies due under the indenture of mortgage, it was a provision for the benefit of the mortgagor himself that the amount payable by the mortgagors should remain at as low a level as possible, that in the meantime the mortgagor should pay and continue to pay the rates and taxes which, if the mortgagee paid would have been charged on the same immoveable property which was the subject-matter of the security and would be recoverable by the mortgagee from the mortgagor in the same manner as the principal and the interest secured thereby. This provision, therefore, in my opinion, does not make any difference to the actual position. There are observations to be found in the commentary of Sir Dinshah Mulla under Section 58(e) of the Transfer of Property Act at page 346, viz.:

The mortgagee acquires the right to take possession as soon as the mortgage is executed,, whether a right of entry is expressly covenanted for or not. If the mortgagee allows the mortgagor to remain in possession, the latter is at Jaw merely a tenant on sufferance liable to be ejected at any time, But as long as the mortgagor is in possession, he, i.e., the mortgagor, is entitled to take for his own benefit the rents and profits of the land and is not liable to account for them to the mortgagee.

In support of this proposition that the mortgagor is at law merely a tenant on sufferance liable to be ejected at any time, the learned commentator has relied on the decision in Scobie v. Collins [1895] 1 Q. B. 375. A reference to that decision, however, does not in terms support this statement of the law. The case there was the case of a mortgagor having: attorned tenant to the mortgagee and having been treated as a tenant at will or a tenant on sufferance under the terms of that clause of attornment contained in the deed of mortgage. In that case the mortgagor had since died, his son had entered into and continued in possession of the mortgaged property and it was sought to be argued that the son of the mortgagor who had continued in possession was also a tenant on 'sufferance in the same manner as his father who had attorned tenant to the mortgagee. That argument was, however, negatived by the Court. In the absence of any circumstances which would point to the conclusion that the mortgagee had accepted the mortgagor's son as a tenant, no such position could avail the mortgagee, and the Court therefore held that as the original tenancy was determined by the death of the mortgagor, and a new tenancy was not created between the mortgagee and the heir-at-law (the son of the mortgagor) by mere payment of interest, the distress was illegal, and that the trustee in bankruptcy was entitled to the proceeds of the distress, and that therefore the distress warrant which was taken out at the instance of the mortgagee in that case was illegal. There are, however, certain general observations made by Vaughan Williams J. at p. 377 of that report which are:

A mortgagor in possession is not necessarily more than a tenant on sufferance, and occupation and payment of interest necessarily connected with the mortgage is not necessarily referable to a tenancy other than a tenancy on sufferance.

These are the remarks which appear to have been relied upon by the learned commentator when he at p. 346 of his commentary under 3. 58(e) of the Transfer of Property Act made the statement which I have quoted above. The further statement, however, that as long as the mortgagor is in possession, he, i.e. the mortgagor, is entitled to take for his own benefit the rents and profits of the land and is not liable to account for them to the mortgagee, affords really a clue to the second provision that is contained in this indenture of mortgage, viz. that the mortgagor should continue to pay the rates and taxes to the proper authorities. If the position in law is that the mortgagor who was in possession of the property and recovered the rents and properties is not accountable to the mortgagee for the rents and profits, the mortgagee would, if by stipulation in that behalf he allowed the mortgagor to continue in possession of the property, reasonably stipulate that the mortgagor would pay the rates and taxes to the proper authorities in respect of that property out of the rents and profits which he recovered even though he was not liable to the mortgagee in connection with the same. The payment of the rates and taxes, therefore, in my opinion, is the necessary adjunct or a corollary of the possession of the property being retained by the mortgagor. That being the position, I do not see anything detracting from the absolute nature of the transfer of the property from the mortgagors to the mortgagee in the stipulation contained in the indenture of mortgage in that behalf, viz. the mortgagors retaining possession of the property until default was committed by the mortgagors in payment, of the principal sum or interest thereon, and being in receipt of the rents and profits thereof, paying all the rates and taxes, assessments, dues and duties payable in respect of the property. These provisions, in my opinion, do not make any difference to the position that the mortgage was an English mortgage within the meaning of Section 58(e) of the Transfer of Property Act. If there is anything which can be said to have been laid down by the learned Judges of the Calcutta High Court in the decision in Satya Char an v. Ramkinkar contrary to what I have stated above, I respectfully beg to differ from the same.

12. This indenture of mortgage dated November 17, 1922, therefore, being an English mortgage, the next question that I have to consider is what is the period of limitation prescribed therefor It has been contended by Mr. S. M. Shah for the plaintiff that the article of the second schedule to the Indian Limitation Act which is applicable in the case of a mortgagee filing a suit under an English mortgage of the type we have here is Article 147 which prescribes sixty years' period commencing from the due date for repayment of the monies due under that mortgage. He, therefore, contended that the suit as filed by the plaintiff for realisation of that mortgage is not barred by the law of limitation. In this connection Mr. S. M. Shah relied upon the decision of the Privy Council reported in Vasudeva Mudaliar v. Srinivasa Pillai I.L.R (1907) Mad. 426: 9 Bom. L.R. 1104. where their Lordships held that a suit on a simple mortgage bond to enforce payment of the amount due on the bond by sale of the mortgaged property is governed by Article 132 of the schedule II to the Indian Limitation Act and not by Article 147, and that the latter article is limited in its application to the one class of mortgages in which alone the suit can be, and always is, brought for foreclosure or sale, that is to mortgages in the English form. It is not disputed that this was the law before the amendment of the Transfer of Property Act by Act XX of 1929. The only instance in which you could have a suit brought by a mortgagee for foreclosure or sale within the meaning of Article 147 of schedule II to the Indian Limitation Act was in the case of an English mortgage. It was, however, contended that by the Act XX of 1929 an amendment was made in Section 67 of the Transfer of Property Act which curtailed the rights of an English mortgagee so far as his right to sue for foreclosure of the mortgaged property was concerned. Section 31(c) of the Transfer of Property (Amendment)' Act, XX of 1929, substituted for the original Clause (a) of Section 67 the following:

(a) to authorise any mortgagee, other than a mortgagee by conditional sale or a mortgagee under an anomalous mortgage by the terms of which he is entitled to foreclose, to institute a suit for foreclosure, or an usufructuary mortgagee as such or a mortgagee by conditional sale as such to institute a suit for sale; or

in place of the provisions which theretofore obtained, viz.,

to authorise a simple mortgagee as such to institute a suit for foreclosure or an usufructuary mortgagee as such to institute a suit for foreclosure, or sale, or a mortgagee by conditional sale as such to institute a suit for sale, or

It was argued that after the enactment of this amendment in Section 67(a) by this Act XX of 1929 the English mortgagee was deprived of his right to sue for foreclosure of the mortgaged property. This proposition was not disputed by Mr. S. M. Shah. He relied for his contention as to the applicability of Article 147 of the second schedule to the Indian Limitation Act on the provisions of Section 63 of the Act XX of 1929 which says that:

Nothing in any of the following provisions of this Act, namely, Sections 3', 4, 9, 10, 15, 18, 19, 27, 30, Clause (c) of Section 31, Sections 32, 33, 34, 35, 46, 52, 55, 57, 58, 59, 61 and 62 shall be deemed in any way to affect-

(a) the terms or incidents of any transfer of property made or effected before the first day of April 1930,

(b) the validity, invalidity, effect or consequences of anything already done or suffered before the aforesaid date,

(c) any right, title, obligation or liability already acquired, accrued or incurred before such date, or

(d) any remedy or proceeding in respect of such right, title, obligation or liability.. etc.

He contended that the indenture of mortgage in suit was executed on November 17, 1922, and therefore the transfer of property effected by the said indenture of mortgage dated November 17, 1922, having been effected before April 1, 1930, the terms or incidents of such transfer were not affected by the amendment of Section 67(a). He contended that in any event any remedy or proceeding in respect of such right, title, obligation or liability was saved by the last Clause (d) of this Section 63 and that therefore the remedy by way of suit which could be filed by him within sixty years from the date of the accrual of the cause of action and the commencement of the period of limitation within the meaning of Article 147 was not at all affected by Act XX of 1929. In support of this position Mr. S. M. Shah drew my attention to a decision of the Calcutta High Court reported in Saradindu Mukherji v. Jahar Lal Agarwala, where it was held:

By the amendment made by Section 31(c) of Act XX of ,1929 in the Transfer of Property Act, Section 67, Clause (a), the right of an English mortgagee to sue for foreclosure was taken away and his suit on the mortgage could no longer be regarded as a ' suit for foreclosure or sale' within the meaning of Article 147 of the Indian Limitation Act. Such a suit would, therefore, now be governed not by Article 147, but by Article 132. But under the saving clause in Section 63 of the Amending Act, a suit on an English mortgage executed prior to April 1, 1930, is outside the scope of such amendment and will be governed by Article 147.

The Privy Council case in Vasudeva Mudaliar v. Srinivasa Pillai [1942] 1 Cal. 326, which I have referred to earlier, was referred to by the learned Judges of the Calcutta High Court in arriving at this decision of theirs. This decision of the Calcutta High Court is on all fours with the present case and I would be justified in following it and in coming to the conclusion as contended by Mr. S. M. Shah,

I may, however, deal with the argument which was advanced by Mr. Desai in this connection, and which was based on the provisions of the next amending Act, viz. Act XXI of 1929 which was an Act called The Transfer of Property (Amendment) Supplementary Act, 1929. Mr. Desai pointed out that Section 9 of this Supplementary Act XXI of 1929 added 'the advances secured by mortgage by deposit of title deeds' within the provisions of Article 132 of the 2nd schedule to the Indian Limitation Act. He further pointed out Section 15 of the, same Act, Sub-section (1) whereof is in identical terms with the terms of Section 63 of Act IXX of 1929, which, however, did not merely rest with this saving clause therein contained but went on to provide in Sub-section (2) that a suit by a mortgagee for foreclosure or sale on a mortgage by deposit of title-deeds may be instituted within two years from the date of the commencement of the Act (Act XXI of 1929) or within sixty years from the date when the money secured by the mortgage became due, whichever period expires first. Mr. Desai therefore contended that there being no such provision in the case of the English mortgagee whose right to foreclose was brought to an end by the amendment of Section 67 enacted in Act XX of 1929, the Court should come to the conclusion that the period of limitation which was prescribed under Article 132 was operative even in the case of an English mortgagee, enough time having been given to the English mortgagees, viz. six. months, if they wanted to file their suits on their mortgages. This argument of Mr. Desai, however, is not sound for the reason that it completely ignores the saving clause which has been enacted in Section 63 of Act XX of 1929 and misreads the provisions of Section 15(2) of Act XXI of 1929. Section 15(2) of the latter Act was considered necessary to be enacted because in spite of the provisions of Section 15(7) of that Act which in terms did not affect the terms or incidents of any transfer made or effected before April 1, 1930, or any remedy or proceeding in respect of such right, title, obligation or liability, etc. it did in fact curtail the rights which equitable mortgagees by deposit of title deeds had by virtue of this saving clause to file suits within sixty years for payment of the dues under their mortgages. Section 15(2) was thus necessary because it curtailed the rights which otherwise would have been vested in the equitable mortgagees by deposit of title deeds. No such provision was considered necessary in the case of an English mortgagee whose right to foreclose was taken away by the enactment of Section 31(c) of the Act 'XX of 1929. This argument also, I may observe, was dealt with by the learned Judges of the Calcutta High Court in Saradindu Mukherji v. Jahar Lal Agaiwala. I therefore: reject this argument of Mr. Desai.

13. On these authorities I have come to the conclusion that the right of an English mortgagee to file a suit for foreclosure or sale which had vested in him in the case of an English mortgage executed before April 1, 1930, was not taken away or affected by the amending Act XX of 1929 and by the amendment of Section 67(a) of the Transfer of Property Act enacted therein and that Article 147 of the 2nd schedule to the Indian Limitation Act continues to be the article applicable to suits filed by English mortgagees where these mortgages have been executed prior to April 1, 1930. I hold, therefore, that the suit, filed by the plaintiff to realise this mortgage security, having been filed within sixty years from the due date, viz. November 1, 1923, is in time.

14. An argument was, however, addressed by Mr. Dtesai that even though that might be the position if the mortgagee wanted to prosecute his remedy as against the mortgagors, defendants Nos. 1 to 5 were not the mortgagors, the only mortgagor having been Vithal Ramchandra Parulkar, the deceased. Under the terms of the mortgage itself Vithal Ramchandra Parulkar was the mortgagor. The accident of his having been described as the manager of the joint family, according to him, not making any difference to the position because Mr. S. M. Shah for the plaintiff had given up the case altogether of the monies having been borrowed by Vithal Ramchandra Parulkar as the managing member of the joint family or for the purposes of family necessity, the only manner in which defendants Nos. 1 to 5 were sought to be held liable by the plaintiff in connection with this debt being that it was an antecedent debt of Vithal Ramchandra Parulkar. Mr. Desai contended, that the pious obligation of the sons to satisfy the debts due by their father not being illegal or immoral did not extend to those cases where the mortgage was not a mortgage executed by the father either as the manager of the joint family or for any family necessity and was merely coterminous with the liability of the father. The father might be liable to pay the mortgage debt and a suit could be filed against him within twelve years of the commencement of the period of limitation within the meaning of Article 132 of the 2nd schedule to the Indian Limitation Act; but so far as the pious obligation of the sons went, they could only be held liable provided the suit had been filed by the mortgagee either within three years or within six years of the period of limitation according to certain decisions of the Madras and the Allahabad High Courts which were relied upon by Mr. Desai. He therefore contended that the suit against defendants Nos. 1 to 5 was in any event barred by the law of limitation and contended that Article 147 of the 2nd schedule to the Indian Limitation Act did not apply to the suit which had been filed by the plaintiff against defendants Nos. 1 to 5 and that therefore the suit was barred by the law of limitation. At first sight this argument of Mr. Desai was very plausible and one was almost inclined to feel as if the decisions which had been referred to laid down a position which was quite absurd and should not be easily accepted by the Court. On a full consideration of the position, however, I have come to the conclusion that the authorities cited by Mr. Desai and the passage of Sir Dinshah Mulla's Hindu Law in Section 293(5) at p. 342 have no application whatever to the present case. Where the debt due by the father is a simple money debt, the liability of the sons by reason of the pious obligation to pay the debt incurred by the father, not being illegal or immoral, is coterminous or co-extensive with the liability of the father. The debt would be barred so far as the father is concerned if more than three years had elapsed. The recovery of the debt so far as it was sought to be recovered from the sons would in one view be barred if the suit in respect thereof was filed beyond that period of three years or in another view, taking it to be a suit to recover monies due by the son to the creditor by reason of the pious obligation to discharge the debts of the father not being illegal or immoral and not being covered by any other article of the Indian Limitation Act it would be covered by Article 120 and therefore the suit if filed beyond six years from the due date of payment of that debt would be barred by the law of limitation. That, however, is the position in respect of a simple money debt. When you come to the case of a debt which is secured by a mortgage, there are two positions to be considered there. Has the father alienated the joint family property for the purposes of securing a present advance, or has he alienated the joint family property for the purposes of securing an antecedent debt, in which event the alienation by the father of the joint family property would be binding even on the right, title and interest of the sons in the joint family property, the subject-matter of the mortgage In the case' of a debt which is secured by a mortgage but is a present advance and not an antecedent debt, the position of the sons is not at all different, as far as the recovery of the debt from their right, title and interest in other joint family properties is concerned from what obtains in the case of a simple money debt incurred by the father. The father is a party to the indenture of mortgage and his right, title and interest whatever it is, is no doubt bound by the terms of that' indenture and forms the subject-matter of the security. A suit can be filed against the father in respect of his right, title and interest in the property within the requisite period prescribed in the 2nd schedule to the Indian Limitation Act. A further provision is made in the case of a decree having been obtained against the right; title and interest of the father in a mortgage suit filed by the creditor against the father during his lifetime and that is, that the decree can be executed even against the right, title and interest of the sons in the joint family property and their right, title arid) interest in the joint family property would be liable to be sold in execution of that decree though against the father, unless the sons were successful in proving before the Court that the debt in respect of which the security was given by the father was not binding on them by reason of its being avywaharik, i.e. illegal or immoral. Where, however, no such decree is obtained against the father during his lifetime or against his right, title and interest in the property even though mortgaged by him to secure the debt of the type which I have mentioned above, the creditor would be entitled, by reason of the pious obligation of the sons to pay the father's debts not being illegal or immoral, to proceed against the sons but he could not succeed against the sons unless he filed a suit against them either within the six years period or three years period which has been laid down by the Allahabad and the Madras decisions referred to in Section 293(3) at p. 342 of Mulla's Hindu Law. His remedy against the sons to obtain a personal decree against them, personal not in the sense that he could attach the properties belonging to the sons themselves personally in execution of that decree, but personal in the sense that he could go against the right, title and interest of the sons in the joint family properties, would fall to be prosecuted as indicated above. When, however, we come to the cases where the alienation made by the father of the joint family property is for securing an antecedent debt, the sons under the pious obligation to pay the father's debts, have by virtue of that debt being an antecedent debt, their right, title and interest in the joint family property also alienated by the very terms of the indenture of mortgage executed by the father. In the case of such antecedent debts, it is not open to the sons to contend that the father did not contract these debts as the manager of the joint family or for the purposes of family necessity. The debt is a debt incurred by the father, and by reason of its being an antecedent debt within the meaning of the observations of Lord Dunedin in Brij Narain v. Mangla Prasad the right, title and interest of the sons are bound by the alienation, it being an alienation for an antecedent debt. 'There is no other argument which the sons can avail themselves of, when a suit is filed by the mortgagee on a debt I which was an antecedent debt and was secured by the alienation of the property by the father. In such an event, the alienation which is made by the father being deemed in law to be an alienation not only of the father's right, title and interest in the property but also of the right, title and interest of the sons in that property, what is the subject-matter of the mortgage is the whole of the joint family property including the right, title and interest of the sons therein and what the mortgagee does in filing a suit for the realisation of that mortgage is that he makes the subject-matter of that suit for realisation of the mortgage security, the whole of that property including the right, title and interest of the sons therein. It makes not the slightest difference to the position that when the suit is filed by the mortgagee the father is dead and that according to the strict position in Hindu law the right, title and interest of the father in the property has survived over to the other members of the joint family, viz. the sons. The whole of the joint family property including the father's right, title and interest therein which has survived over to the sons and including the sons' right, title and interest in that property, is the subject-matter of that suit for realisation of the mortgage security and the whole of that property including the father's and the sons' right, title and interest therein is liable to satisfy the mortgage. This is the true position in Hindu law and the passage which has been cited by Mr. Desai from Section 293(5) at p. 343 of Mulla's Hindu Law does riot affect the position at all. I am therefore of opinion that Mr. Desai's contention in this behalf also fails, that the right, title and interest of defendants Nos. 1 to 5 the surviving members of the joint family constituted by the deceased Vithal Ramchandra Parulkar and defendants Nos. 1 to 5 herein are also bound by the terms of this indenture of mortgage dated November 17, 1922, and the suit filed for the realisation of this mortgage security having been filed within sixty years of the due date, viz. November 16, 1923, is within time.

15. Mr. Gupte for the minors in this suit asks that the costs of the guardian ad litem of the minor defendants Nos. 3 and 4 should be provided for. I do not see any justfication for making the plaintiffs pay the costs in the first instance and allowing them to tack them on to the mortgage debt as is asked for by Mr. Gupte. The only order which I can make in his favour is that if there is any surplus after satisfying the claim of the mortgagee in full, the guardian ad litem should be entitled to recover his costs out of the share of minor defendants Nos. 3 and 4 in that surplus.


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