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Muhammad HussaIn and ors. Vs. Sanwal Das and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1934All397
AppellantMuhammad HussaIn and ors.
RespondentSanwal Das and ors.
Excerpt:
- - their lordships pointed out that if they had words like 'cause of action arises' to interpret, there might be much to be said in support of the allahabad decisions. 6. there is accordingly no doubt whatsoever that the full bench cases of this court have been expressly overruled and are no longer good law. it is then contended that in the present case the mortgagor had already a right under the deeds to red earn before the expiry of the fixed period, and so when the mortgagee also came to have the right to sue, there was perfect mutuality and the-money must be deemed to have become duo within the moaning of article 132. it is further pointed out that in the limitation act, the words 'become due' or 'falls due' and the word 'payable' are used in different senses, reference is made to.....sulaiman, c.j.1. the facts of this case are as follows : on 20th february 1902, mohammad raziuddin executed a mortgage-deed in favour of the respondents for rs. 1,000, carrying interest at rupee 1-80 per cent per mensem 'promising to repay the same in eight years.' the strictly literal translation of the vernacular words, though not grammatical, would be 'on the promise of eight years payment.' the deed provided that if the interest for one complete year remains unpaid the creditors shall have power to recover the interest and shall also be at liberty to recover the principal and interest without having any regard 'for the stipulated period.' on 8th september 1903 another mortgage deed was executed by the same person in favour of the same mortgagees for rs. 700 at the same rate of.....
Judgment:

Sulaiman, C.J.

1. The facts of this case are as follows : On 20th February 1902, Mohammad Raziuddin executed a mortgage-deed in favour of the respondents for Rs. 1,000, carrying interest at rupee 1-80 per cent per mensem 'promising to repay the same in eight years.' The strictly literal translation of the vernacular words, though not grammatical, would be 'on the promise of eight years payment.' The deed provided that if the interest for one complete year remains unpaid the creditors shall have power to recover the interest and shall also be at liberty to recover the principal and interest without having any regard 'for the stipulated period.' On 8th September 1903 another mortgage deed was executed by the same person in favour of the same mortgagees for Rs. 700 at the same rate of interest 'promising to pay off the amount in eight years.' There was a stipulation that if the interest and compound interest were not paid for one year the creditors shall, after the expiry of one year, have power to recover the principal amount with interest and compound interest 'without waiting for the expiry of the stipulated period.' There was an additional clause in the second mortgage-deed in the following terms:

Whenever I the executant shall pay any amount the creditors aforesaid shall receive it without any objection and shall, after setting it off against the interest, credit the balance towards the principal, and the interest will be reduced in proportion to the amount paid.

2. Admittedly interest was not paid and there were defaults at the expiry of one year on account of both these mortgage-deeds. There was an acknowledgment of both these mortgage debts on 3rd March 1906, which gave a fresh start for the purpose of limitation. One consolidated suit was filed on 22nd February 1916, to recover the amounts due on both these documents and in 1917 the claim was decreed. On 20th February 1929, after all the mortgaged properties had been sold, there still remained a balance of over Rs. 2,000 to be realized. The mortgagees accordingly filed an application on 21st August 1929, under Order 34, Rule 6 for a personal decree against the mortgagors. The mortgagors objected to this application on the ground that the personal remedy was barred by time. The Court, below has disallowed this plea. The mortgagors have appealed to this Court. The Bench before which the case came up for disposal, on these facts, referred the following question to the Full Bench:

Whether in the circumstances mentioned above limitation for a decree under Order 34, Rule 6 commented to ran after the expiry of one year within which the mortgagor made continued default of payment; of interest, or whether, it commenced to run after the expiry of eight Years' terra stipulated in the deed.

3. Before 1932 the view which prevailed in this Court was that the limitation being to run against a mortgagee from the date of the first default which entitles him to sue for the whole amount. It is not necessary to refer to earlier cases. But in Daya Din v. Jhumman Lal A.I.R. 1915 All. 189, the majority of the Full Bench held that money becomes 'due' within the meaning of Article 132 as soon as it can be legally demanded and recovered by suit and the mortgagor can no longer plead that the suit is premature. The view of the Full Bench was followed by a larger Full Bench in Shib Dayal v. Meharban A.I.R. 1923 All. 1. In this case it was laid down that the question whether the mortgagee is bound to sue or not and whether he does at once sue or not was wholly irrelevant to the issue; so long as he can sue even though he does not choose to sue, the money has become due. The Full Bench in Shib Dayal's case A.I.R. 1923 All. 1 then considered the question of limitation with reference to the personal liability and came to the conclusion that the starting point of limitation should be the same for the recovery of the amount by sale of the property and for recovery of it as simple debt, as the cause of action for the enforcement o both the reliefs was one and the same. They held that Article 80 read with Article 116, Limitation Act, was the appropriate Article for money claim under a registered bond and held that the expression 'becomes payable' was very much the same thing as the words 'become due,' and accordingly the cause of action being the same the periods of limitation for both would begin to run simultaneously and the claim for a personal decree would be barred after six years from the first default. The Lahore High Court and Oudh Chief Court took the same view as was taken in Allahabad, but the Madras and Patna High Courts took a different view. The Oudh Chief Court appears to have gone further and held that even the mortgagor's right to redeem can accrue as soon as the default is made. This could be supported only on the assumption that the stipulated period was a 'term of years or the date of default, whichever is the earlier.' Although the view in this Court was that the money became duo within the meaning of Article 132 go as to make the period of limitation for a suit for sale run from the date of the default, it was never held that the mortgagor also can by his own default entitle himself to redeem before the expiry of the stipulated period. The mortgagor's suit for redemption would be governed by Article 148, Limitation Act, the words in the third column of which were different from the words in the third column of Article 132. His right to redeem or recover possession cannot accrue contrary to a special contract fixing a period of time within which he could not redeem. Pancham v. Ansar Husain A.I.R. 1926 P.C. 85, was a case in which there was somewhat similar clause giving power to the mortgagee to recover the whole amount in case of default of payment of interest. Their Lordships of the Privy Council were able to dispose of the case on a different ground but Lord Blanesburgh, who delivered the judgment of their Lordships observed that this High Court applying the previous decision in Gaya Din's case A.I.R. 1915 All. 189 and other cases, had held that

a single delimit on the part of the mortgagors without without any act of election, cancellation or other form of response or acceptance on the part of the mortgagees, and even, it would appear against their desire, operates eo instanti, to make the money scoured by the mortgage 'become due' so that all right of action in respect of the security is finally barred 12 years later.... All this the High Court held, notwithstanding that the mortgage is for a term certain, a provision which may be as much for the benefit of the mortgagees as for the mortgagors, and notwithstanding that the proviso is exclusively for the benefit of the mortgagees.

4. Their Lordships recognizing the seriousness of the view taken by the Allahabad High Court, which according to their Lordships, had been 'emphasized and perhaps extended' as it has be on by a later Full Bench decision to the same effect : see Shib Dayal v. Meharban A.I.R. 1923 All. 1, considered it manifestly desirable that the question should be examined noon. In Lasa Din v. Gulab Kunwar , there was a mortgage-deed which contained a clause that in case of default the creditor shall at all times within and after the expiry of the stipulated period have to power to realize the entire mortgage money with interest. Their Lordships of the Privy Council definitely overruled the Full Bench cases of Gaya Din A.I.R. 1915 All. 189 and Shib Dayal A.I.R. 1923 All. 1, so far as the interpretation of Article 132 was concerned.

5. Their Lordships considered it a matter of great regret that they had to pronounce upon this important and difficult question without the assistance of counsel for the respondents, but as the case had been placed before their Lordships very fully and fairly by the counsel for the appellant their Lordships had the opportunity to give full consideration to their judgment. Their Lordships accordingly laid down that a proviso of such a nature is inserted 'exclusively for the benefit of the mortgagees' and that it purports to give them an option either to enforce their security at once, or, if the security is ample, to stand by their investment for the full term of the mortgage. Their Lordships pointed out that if on the default of the mortgagor the mortgage money becomes immediately due the option in the mortgagees would be converted into an option in the mortgagor for, as hold by the Oudh Chief Court, the mortgagor can claim to repay the amount before the expiry of the stipulated term, which, in their Lordships' opinion, was an impossible result as the mortgagor could not be allowed in this way to take advantage of his own default. It was accordingly laid down that the mortgage money does not become due within the meaning of Article 132, Limitation Act, until both the mortgagor's right to redeem and the mortgagee's right to enforce his security have accrued and that this would, of course, also be the position if the mortgagee exercised the option reserved to him. Their Lordships pointed out that if they had words like 'cause of action arises' to interpret, there might be much to be said in support of the Allahabad decisions.

6. There is accordingly no doubt whatsoever that the Full Bench cases of this Court have been expressly overruled and are no longer good law. The learned advocate for the mortgagor contends before us that the Full Bench case of Shib Dayal v. Meharban A.I.R. 1923 All. 1, has not been overruled so far as the bar of limitation against the personal remedy is concerned, and that on this latter point that Fall Bench decision is binding upon this Court. It is urged that even if the reasons on which the latter decision was based have now disappeared the decision itself is binding on this Court because it cannot be considered to have been overruled by their Lordships of the Privy Council. The learned Counsel points out that whereas the words in Article 132 are 'when the money sued for becomes due' the words in Article 80 applied by the Full Bench to such cases, are 'when the bond becomes payable.' It is therefore argued that when the words to be interpreted are different it is the decision of the Full Bench of five Judges which is binding on this Court and not the decision of their Lordships of the Privy Council the learned Counsel further draws our attention to the passage in the judgment of their Lordships quoted above where it was laid down that the mortgage money does not become due until both the mortgagor's right to redeem and the mortgagee's right to enforce his security have accrued. It is then contended that in the present case the mortgagor had already a right under the deeds to red earn before the expiry of the fixed period, and so when the mortgagee also came to have the right to sue, there was perfect mutuality and the-money must be deemed to have become duo within the moaning of Article 132. It is further pointed out that in the Limitation Act, the words 'become due' or 'falls due' and the word 'payable' are used in different senses, Reference is made to Article 69 whore on a bill of exchange or a promissory note payable at a fixed time after date limitation begins to run from the date when the bill or note falls due. If the period of grace is added under Section 22, Negotiable Instruments Act, the two dates would be different.

7. No doubt if one were to be strictly literal and very technical, one might say that the decision in Shib Dayal v. Meharban A.I.R. 1923 All. 1, has been overruled on one point only. But I feel that it would not be proper for this Court to adhere to the original view when its basis has been destroyed by the pronouncement of their Lordships of the Privy Council and the ratio decidendi has altogether disappeared. I take the pronouncement of their Lordships to mean that a clause of this nature is exclusively for the benefit of the mortgagee and gives him a perfect option or liberty to sue for his money or to stand by his investment for the full term of mortgage, and so long us the mortgagee does net by means of any act of election, cancellation or other form of response or acceptance make the money become due, time does not begin to run against him. The mere fact that the mortgagor has made a default and thereby deprived himself of the protection which the stipulated term gave him, would not suffice for limitation to commence to run against the mortgagee if the latter waives his right to sue and chooses not to exercise his option. In view of this interpretation of the law the ground on which Shib Dayal's case A.I.R. 1623 All. 1 was decided can no longer be sustained.

8. It has already been pointed out that the reason given by the Full Bench for holding that limitation began to run from the same data so far as the personal liability also was concerned was the same, namely, that the cause of action for claiming both the reliefs have accrued simultaneously on account of the default. Indeed, the Full Bench considered that the words 'bond becomes payable' in Article 80 meant very the same thing as money becomes due' in Article 132. Further their Lordships of the Privy Council in Pancham Singh's case A.I.R. 1926 P.C. 85, at p. 464, (of 48 All.), considered that the Full Bench had not only emphasized, but perhaps extended the view taken in Gaya Din's case A.I.R. 1915 All. 189 previously. It therefore seems to me that the basis of both the views must be deemed to have gone on account of the latest pronouncement of their Lordships. I have therefore no option, but to hold that the ruling in Shib Dayal's case A.I.R. 1923 All. 1, has been definitely overruled so far as the applicability of Article 132 is concerned and has by necessary implication been overruled so far as the commencement of the limitation on the first default under Article 80 also concerned. It follows that time did not begin to run on the two bonds before the expiry of the stipulated periods. It is not necessary to decide in this case when time would begin to run if a mortgagee were to enforce a default clause; nor is it necessary to consider whether the mortgagor had a right of redemption even before the expiry of the stipulated period.

9. So far as the deed of 1903 is concerned there can be no doubt as to when the mortgagor could redeem, as there was an express clause to that effect at the end of the document. There may be some doubt as regards the first document, but I should say that the question whether a period specified in the document is for the benefit of both the mortgagor and the mortgagee or for the benefit of only one of them is a question of interpretation of the document. Sometimes a stipulated period may be for the protection of the mortgagor so as to prevent a demand being made from him before the expiry of that period. Sometimes it may be to ensure to the mortgagee an investment of his money for at least a fixed period. Again in some cases it may be for the benefit of both. Each document has to be interpreted on its own terms and the words used have to be read in conjunction with all the other stipulations in the deed, and the real intention of the parties deduced there from. It may not be fair to take a few words out of the context and lay down a general rule of interpretation as to their proper meaning. Ordinarily, and in the absence of a special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right of redemption can only arise on the expiration of the specified period, before which the mortgagee also cannot sue : Bakhtawar Begam v. Husaini Khanum A.I.R. 1914 P.C. 36, at p. 199 (of 36 All.).

10. But I must say that if a document says that the mortgagor shall have a right to redeem it 'within a fixed period' there is some difficulty in holding that it necessarily means that the mortgagor cannot redeem it before the expiry of the period. On the other hand where the mortgage is for a stipulated period, ordinarily it would be a fixed term binding upon both the parties. In cases where ambiguous words are used the intention of the parties has to be gathered from the whole document. As the question does not directly arise, I should not like to commit myself in this case as to whether when the mortgage is payable 'in a fixed number of years' it is necessarily redeemable before the expiry of that period. On the one hand if the word is taken literally one would think that it would be so redeemable, otherwise one would have to give to the word in' the meaning of the word 'after.' But on the other hand the context of the document may show that the word 'in' was used loosely for the word 'for.' I may in this connexion point out that in the mortgage-deed which was before their Lordships of the Privy Council for consideration in Pancham v. Ansar Husain A.I.R. 1926 P.C. 85 the words were 'stipulated to be paid in 12 years.' Their Lordships took it for granted that the time fixed for repayment was 12 years and that the mortgage was for a term certain.

11. My answer to the question referred to us is therefore that the limitation began to run after the expiry of the stipulated period.

King, J.

12. I agree. It seems to me that their Lordships of the Privy Council in Lasa Din v. Gulab Kunivar A.I.R 1923 P.C. 207 by expressly overruling the Full Bench decision of Shib Dayal v. Meharban A.I.R. 1923 All. 1, on the question of limitation for a suit for sale, have by necessary implication overruled it also on the question of limitation for a suit for a personal decree. The Full Bench held that the starting point must be the same for both classes of suits, as the expression 'becomes due' in Article 132 is very much the same thing as 'becomes payable' in Article 80. I quite agree, and indeed I think we are bound by the authority of the larger Full Bench on this point which certainly has not been overruled by the Privy Council.

13. Now on the authority of Lasa Din's case A.I.R. 1923 P.C. 207 we are, in my opinion, bound to hold that the mortgage money did not 'become due' when the mortgagor made default in payment of interest for one year, unless the mortgagee chose to exercise his option by demanding the entire mortgage money or by instituting a suit for sale. It is argued that Lasa Din's case does not apply when the mortgagor has a right to redeem before the expiry of the stipulated period. Their Lordships observed that the money does not become due, within the meaning of Article 132, until both the mortgagor's right to redeem and the mortgagee's right to enforce his security have accrued. This seems to imply that the money does become due when both the right of redemption and the right of enforcement have accrued. In the present case the mortgagor certainly had a right to redeem the mortgage of 1903 before the expiry of the stipulated period. So when the mortgagee's right of enforcement accrued by reason of the mortgagor's default in payment of interest, it is certainly arguable that the money had become due' within the meaning of Article 132. In my opinion however this would not be a correct interpretation of their Lordships' views in Lasa Din's case . They lay stress upon the point that the provision enabling the mortgagees to sue before the expiry of the stipulated period is inserted 'exclusively for the benefit of the mortgagees,' giving them an option either to enforce their security at once or to stand by their investment for the full term. I take this to mean that the mortgagee has an option of treating the money as having become due' by demanding or suing for it, and that it does not become due unless he exercises his option, even though the mortgagor may already have a right to redeem in accordance with the terms of the mortgage contract. If we hold that time begins to run for a suit to enforce the mortgage from the date of the first default that gives an optional cause of action, then it could not be said that the provision is inserted exclusively for the mortgagee's benefit. He would have to sue within 12 years from the date of the first default although he might prefer to stand by his investment for the full term and then sue within 12 years from the expiry of that term. He might indeed be compelled to sue before the expiry of the full term, if the term were 13 years or more. In my view therefore the question whether the mortgagor has a right to redeem before the expiry of the stipulated period is immaterial. Time does not begin to run against the mortgagee before the expiry of that period unless he avails himself of the option inserted exclusively for his benefit.

14. If this view is correct then the money did DOC become flue, within the meaning of Article 132, until the expiry of the stipulated period. I think it follows, on the authority of the Full Bench decision in Shib Dayal's case A.I.R. 1923 All. 1, that the money did not 'become payable,' within the meaning of Article 80 until the same date.

Niamatullah, J.

15. The facts of this case have been fully stated by the learned Chief Justice It will appear that there is an important distinction between this case and Lasa Din v. Gulab Kunwar , in so far that the bond in suit in that case contained a stipulation that the mortgagee was not entitled to call in his money within the term fixed by the deed, nor was the mortgagor entitled to pay within the aforesaid term. From the report of the case it does not appear what the precise terms of the bond were. Their Lordships however accepted it as a fact not disputed by either side that the mortgage was for a term of six years certain. In the case before us the deeds cannot be so read as to make them for a term certain. The words used in both the deeds are 'ba waida adai ath sal,' which have been, in my opinion, rightly translated by the office as 'promising to repay...in eight years.' In one of the deeds (dated 8th September 1903), it is expressly stipulated that

whenever I, the executant, shall pay any amount, the creditor aforesaid shall receive it without any objection and shall, after setting it off against the interest, credit the balance towards the principal, and the interest will be reduced in proportion to the amount paid.

16. Quite apart from a stipulation of the kind I am of opinion, that a condition like the one found in these deeds is always for the benefit of the mortgagor, who cannot be sued by the mortgagee within that term but may himself pay it if he likes. The term is always intended as a measure of forbearance which the mortgagee agrees to show.

17. It has been argued on the authority of the cases that clauses which provide that the mortgage money shall be paid 'in so many years' or 'within so many years' should be construed as providing for a term certain, so that neither the mortgagor can pay nor the mortgagee can recover within that term. In Shiani Lai v. Jagdamba Prasad : AIR1928All131 , a Division Bench of this Court had the occasion to consider a document in which there was a stipulation that the mortgagor would redeem the mortgaged property 'within 15 years.' One of the learned Judges following Vadju v. Vadju (1880) 5 Bom. 22 held that in the absence of any agreement express or implied to the contrary the right to redeem and the right to foreclose must be regarded as co-extensive and that the mere use of the words 'andar miad' in the mortgage-deed is not enough evidence of a contract that the mortgagor was given a right to redeem before the expiry of the stipulated period for which the mortgage was effected. At one place the learned Judge mentioned that

the mortgagor had usufructuarily mortgaged the property for a term of 15 years, viz., from Kharif 1300 to the end of 1314 Fasli.

18. This is followed by a stipulation to the effect that the mortgagor would redeem within 15 years. It may be that the deed,, read as a whole, showed in that case that the use of the word 'within' was wrong and that the intention of the parties that the mortgagor should not be at liberty to redeem within the stipulated term was perfectly clear from other parts of the deed. It may be conceded that if there are clear indications in a deed showing, that the mortgagor was debarred from paying within the stipulated term which was as much for the benefit of the mortgagee as for his own, the mere use of the words 'andar miad' may not neutralise such indications; but I am strongly of opinion that, in the absence of other words showing that the mortgagor is precluded from redeeming within the term, the use of the words 'in so many years' or 'within so many years' in itself implies that the right to redeem and the right to foreclose have not been made coextensive by the parties. The other learned Judge composing the Division Bench observed that

if the matter were res integra, I would be prepared to hold that 'andar miad' meant before the expiry of 15 years and that, according to the stipulation contained in the mortgage bond this suit was not premature.

19. But the learned Judge thought that Raghubar Dayal v. Budhu Lal (1886) 8 All. 95 and Bakhtawar Begam v. Husaini Khanum A.I.R. 1914 P.C. 36 were conclusive on the point. I have carefully examined these cases and entertain no doubt that the question was res integra and is so, at any rate, 30 far as this Full Bench is concerned.

20. In Raghubar Dayal v. Budhu Lal (1886) 8 All. 95 the deed was in a different language and in any case that ruling did not make the question otherwise than res integra so far as this Court is concerned. There is nothing in Husaini Khanam v. Husain Khan (1907) 29 All. 471, which may justify the view that the word 'in' or 'within' should be ignored. The learned Judges had not to consider a clause occurring in any deed. They concluded that

on the evidence afforded by the proceeding before the Collector we are of opinion that the agreement of the parties was that the advance made by Ataullah Khan was to be left outstanding for a period of nine years and that within that period the mortgagee could not foreclose the mortgage nor could the mortgagor redeem it.

21. Similarly in Bakhtawar Begam v. Husaini Khanum A.I.R. 1914 P.C. 36, which is a decision of their Lordships of the Privy Council on appeal from Husaini Khanam v. Husain Khan (1907) 29 All. 471, there is nothing to warrant the view that the use of the word 'within' or 'in' does not imply that the mortgagor has a right to redeem before the expiry of the term. Their Lordships have made it perfectly clear that the mortgage deed is not forthcoming, but both She Courts in India have found that a contract between the parties to the transaction is, for all material purposes, substantially set forth in the proceedings of the Collector's Court dated 18th September 1830 on an application for mutation of names in the Revenue Register.

22. In that case the intention of the parties had to be gathered from certain proceedings taken as a whole, and nothing turned upon the use of the word 'in' or 'within.' Another case, relied on by the learned advocate for the respondents is Akbar Husain v. Shah Ahsanul Haq : AIR1932All155 . The material clause occurring in the deed in question in that case was as follows:

Whereas I have taken a loan of Rs. 1,225.... I have made a usufructuary mortgage for a term of 10 years.... The agreement is that when I, the mortgagor, do pay to the mortgagee within ton years the entire mortgage money cash and in a lump sum, then the property mortgaged will stand redeemed.... Hence I have executed this usufructuary mortgage deed by a conditional sale of ten years that it may serve as evidence when necessary.

23. In that case the words 'in ten years' were clearly qualified by such expressions as 'for a term of ten years,' and again 'mortgage-deed by conditional sale of ten years.' I am clearly of opinion that a condition such as 'I shall pay in ten years' or 'I shall redeem within ten years' implies that the mortgagor is at liberty to pay within that time and shall enjoy immunity from being sued by the mortgagee. To hold in such cases that the mortgagor is not entitled to pay with in the stipulated term would make the condition demonstrably absurd. When a man says that he would pay or redeem in or within ten years, it would be absurd to say that he means that he is not to pay or redeem within that term. Such a construction implies the assumption of a negative where the parties clearly meant the affirmative. For these reasons I hold that in deciding the present case we must start with the hypothesis that the mortgagor was at liberty to pay at any time after the execution of the mortgage-deed, a fact which was not present in either of the two cases decided by their Lordships of the Privy Council. In Pancham v. Ansar Husain A.I.R. 1926 P.C. 85, in which the respondent was not represented, it was assumed that the mortgage was for a term of 12 years certain, within which the mortgagor could not redeem. The same was the case in Lasa Din v. Gulab Kunwar . The former case was disposed of on another ground, though their Lordships made certain observations which were accepted in the second case. That observation is as follows:

Applying certain previous decisions of the Court and in particular a Full Bench decision in Gaya Din v. Jhumman Lal A.I.R. 1915 All. 189 the High Court held that under a clause in the above form a single default on the part of the mortgagors, without any act of election, cancellation or other form of response of acceptance on the part of the mortgagees, and even, it would appear, against their desire, operates eo instanti to make the money secured by the mortgage become due, so that all right of action in respect of the security is finally barred by 12 years later, that is, in the present case, on 21st February 1906. All this the High Court held, notwithstanding that the mortgage is for a term certain, provision which may be as much for the benefit of the mortgagees as of the mortgagors, and notwithstanding that the proviso is exclusively for the benefit of the mortgagees.

24. It seems tome that, though their Lordships did not decide the question, their view is sufficiently indicated by what they considered to be reductio ad absurdum resulting from the view taken by the High Court. Though their Lordships make a reference to 'a term certain,' the essential reason for the view implied in that observation seems to be that the mortgagor has, in such a case, a right of 'election' or 'cancellation,' and that the clause being for the benefit of the mortgagee he can waive the benefit. In the subsequent case greater stress has been laid on another ratio decidendi, viz., that money does not 'become due,' unless there is a mutuality and the mortgagor can pay and the mortgagee can call in his money. They assumed, there being no contest on the point, that the mortgage was for a term certain, so that it was not open to the mortgagor to pay before the expiry of that term and therefore money did not become due. This is perfectly clear from paragraph the last but three. It gives one an impression that if the mortgagor has got the right to pay, and it is also open to the mortgagee to call in his money by the exercise of an option given to him by the deed, the money becomes due. If this is the right view of the decision of their Lordships of the Privy Council, the appellants' contention must prevail, because, as I have already held, the mortgagor was at liberty to pay at any time after the execution of the deeds and the term of eight years was for his benefit and intended as an indulgence to him, which benefit or indulgence was forfeited by his continued default for one year in paying interest so that the mortgagee was no longer bound by the eight years' term and was entitled to sue for the mortgage money after the expiry of the first year.

25. This line of argument is very attractive having regard to the material part of the ratio decidendi adopted in Lasa Din v. Gulab Kunwar , but it seems to me that their Lordships intended to rest their conclusion on two grounds, either of which can support it. As I read para the last but three of their Lordships' judgment, money does not 'become due,' unless : (1) the mortgagor is at liberty to pay and the mortgagee is at liberty to sue, and (2) the mortgagee having an option to claim immediate payment did not avail himself of the option by claiming it before the expiry of the term. Their Lordships point out that in cases in which the mortgagee elects to sue before the expiry of the term and does make a demand or institute a suit, the mortgagor is at liberty to pay within the term, so that the rule of mutuality is enforced by acts of parties. In the case before us, though the mortgagor had the right to pay at any time within the stipulated term the mortgagee did not avail himself of his option to call in his money, and therefore the money sued for did not become due. The question in the present case is not whether the claim is barred by Article 132, Schedule 1, Limitation Act. The mortgagee instituted his suit for recovery of his mortgage money by sale of the mortgaged property and obtained a decree. The sale proceeds did not suffice to pay up the mortgage money. The present proceedings arose from his application for a simple-money decree in respect of the unsatisfied point of the mortgage money. Article 116 read with Article 80 is applicable. The starting point of limitation under Article 80 is when the money sued for becomes payable.' It is argued that their Lordships of the Privy Council have excluded a claim of this kind from the operation of the rule on which they based their judgment when they observed that:

If in the Indian cases the question were, when did the mortgagee's cause of action arise, that is, when he first became entitled to sue for the relief claimed by his suit, their Lordships think that there might be much to be said in support of the Allahabad decisions.

26. It is contended that we are not concerned with the words 'become due' occurring in Article 132, Limitation Act, but with Articles 116 and 80, and the question is when the money sued for became payable, which means in substance 'when did he (mortgagor) first become entitled to sue for the relief claimed.' The contention is plausible, but I do not think that any distinction can be made between the expressions 'when money becomes due' and 'when money becomes payable' if in either case the mortgagee has an option to disregard the term and he did not exercise that option. Precisely the same reasoning holds good in a case in which Article 116 read with Article 80 is applicable as in a case under Article 132. To accede to the above contention would be to introduce an anomaly which is highly undesirable. For the reasons mentioned above I agree in answering the question referred to the Full Bench in the manner proposed by the Hon'ble Chief Justice.


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