1. This is a second appeal by the plaintiffs whose suit for redemption was decreed by the trial Court but dismissed by the lower Appellate Court on the ground that it was time-barred. The question of limitation is the only one raised in this second appeal. The plaintiffs sued for redemption of a mortgage by conditional sale executed on 7th August 1872. The relevant clause for the purpose of limitation in this deed is as follows:
Bawaz mubligh 1203-1-6 mazkura bala he rehan miadi do sal yani bai bilwafa kar diya wa tamam wa kamal zare saman apna murtahinse wasul paya ab dame wa dirame yaftani mera zimme murtahin he baqi nahin hai aur igrar yeh hai ki andar do sal he jab rupya mahina Sawan men nagd yekmusht ada harden tab us sal jasdad haqiyat apni fak rehan kara lewen aur agar andar do sal he rupya ada na ho to bad do sal he yeh bai bilwafa bai Kamil hojaga aur murtahin malik mustaqil shai marhuna ha hoga.
2. The trial Court interpreted this mortgage to mean that redemption could not take place until the period of two years had expired, i.e., on 7th August 1874. The suit was brought on 7th August 1934 and was therefore according to the trial Court within 60 years of the date when the right to redeem first accrued. Article 148 of Sch. 1, Limitation Act, states that for a suit against a mortgagee to redeem or recover possession of immovable property mortgaged, the period of limitation is 60 years and, the period begins to run from the time 'when the right to redeem or to recover possession accrues.' On the other hand, the lower Appellate Court held that the clause quoted gave a right to redeem prior to 1874 and that therefore the period of 60 years in Article 148 had begun to run from 1873 and had expired in 1933 and therefore the suit in 1934 was time-barred. The expression used by the Court below is that the right to sue will begin to run from the first year of the mortgage. The actual date in the mortgage of 7th August 1872 has been ascertained by learned Counsel for the appellants to correspond to Sawan Sudi 13, Sambat 1929, i.e. it is the 13th day of the month of Sawan in that year. There therefore remained 17 days in that month of Sawan in 1872 and if the interpretation adopted by the lower Court is correct then redemption could have been effected in the 17 days of the month of Sawan in the year 1872 or in the month of Sawan in the year 1873 and also in the month of Sawan in the year 1874. On the other hand, the interpretation of the learned Counsel for the appellants is that there could not be redemption until the expiry of two years and as redemption could have first taken place on 7th August 1874 the suit which was brought on 7th August 1934 was with, in the period of 60 years. Learned counsel at first based his argument on the provisions of Section 60, T.P. Act, (Act 4 of 1882), and his argument was that this Section lays down the law in regard to redemption for mortgages generally and therefore covers the mortgages by conditional sale which are defined in Section 58, Sub-section (c) of that Act. Section 60 states:
At any time after the principal money has become payable the mortgagor has a right of payment or tender at a proper time and place of the mortgage money to require the mortgage....
3. His point was that redemption was at any time after the principal money has become payable. He further argued that in the amendment of the Transfer of Property Act by Act 20 of 1929 the word 'payable' had been replaced by the word 'due' and therefore he argued that this alteration should be considered to have the effect that the right to redeem and the right to foreclose should be co-extensive and should run from the same point in time. Now whatever the merits of this contention are, there is a serious difficulty in the application of this argument to the present case. In the Transfer of Property Act (Act 4 of 1882) Section 2 provides:
But nothing herein contained shall be deemed to affect...(c) any right or liability arising out of a legal relation constituted before this Act comes, into force, or any relief in respect of any such right or liability.
4. The present suit is based on a mortgage executed in 1872 which was long before the Transfer of Property Act came into force in 1882. Therefore the rights of the parties should be interpreted in accordance with the law on the subject which was in force in the year 1872 and not in accordance with the later law laid down in Act 4 of 1882. The Schedule of the Transfer of Property Act shows that there were repealed certain Regulations in regard to conditional sales and redemption, namely Bengal Regn. 1 of 1798 and Bengal Regn. 17 of 1806 and in each case the whole Regulation was repealed. Therefore those Regulations had been in force up to 1882 and were in force in 1872. Now turning to these Regulations, Regn. 1 of 1798 in the Preamble states:
It has been long a prevalent practice in the Province of Behar to borrow money on the mortgage and conditional sale of landed property under a stipulation that if the sum borrowed be not repaid (with or without interest) by a fixed period, the sale shall become absolute. This species of transfer has in the above Province been usually denominated bye bilwaffa.
5. In Section 2 it is provided:
In all instances of the loan of money on bye bilwaffa or on the conditional sale of landed property as explained in the Preamble to this Regulation however denominated the borrower who may be desirous to redeem his land by the payment of the money lent upon it with any interest due thereon within the stipulated period, is at liberty on or before the date stipulated either to tender and pay to the lender the amount due to him,, taking such precautions as he may think necessary to establish such tender and payment, if evaded or denied, or without any tender to the lender to deposit the amount due to him, on or before the stipulated date in the Dewanny Adawlut of the City or Zillah...and if the land be in the possession of the lender shall entitle him to demand the immediate recovery thereof.
6. This present mortgage is stated by the Courts below to be a 'rehan bye bilwaffa' and this point is not contested. The statutory provision in Section 2 of Regn. 1 of 1798 states that whatever the conditions are, 'however denominated', the statutory right exists for the lender on or before the date stipulated to make payment and obtain recovery of his land. The exact provision therefore in the document cannot override this statutory right. In Regn. 17 of 1806 Section 7 made a further provision in regard to redemption which was stipulated to be additional to the provision in Regn. 1 of 1798. This Section 7 states:
In addition to the provisions made in Provinces of Bengal, Behar, Orissa and Benares by Regn. 1 of 1798, and in the ceded and conquered provinces by Regn. 34 of 1803 for the redemption of mortgages and conditional sales of land under deeds of bye bilwufa, kutcubaleh or any similar designation, it is hereby provided that when the mortgagee may have obtained possession of the land on execution of the mortgage deed, or at any time before a final foreclosure of the mortgage the payment or established tender of the sum lent under any such deed of mortgage and conditional sale or of the balance due if any part of the principal amount shall have been discharged, or when the mortgagee may not have been put in possession of the mortgaged property, the payment or established tender of the principal sum lent, with any interest due thereupon, shall entitle the mortgagor and owner of such property or his legal representative to the redemption of his property.
7. This Regulation therefore extended the period for redemption to any time before a final foreclosure of the mortgage. In this connexion an argument may be noted by learned Counsel on behalf of the appellants that because the first Limitation Act was not introduced until 1877 there was no law of limitation in force in 1872. This appears to me to be incorrect, because there is a law of limitation laid down in Section 14 of Regn. 3 of 1793 which provided a period of 12 years for the cause of action for any suit. It is true that in a number of cases which have been shown to us these Bengal Regulations have not been quoted, but as they were in force until repealed by the Transfer of Property Act in 1882 it appears to me that they govern the present case and that quite apart from any interpretation of the particular clause in the mortgage deed before us the statutory right of redemption arose prior to the period of two years stated in the document and that the mortgagor had the right to redeem on any day from 13th Sawan 1872 and as his period of limitation was 60 years from the accrual of his right of redemption his suit would be barred in 1934. The next point is what is the meaning of the particular words in the clause. No doubt the first part of the clause in question does state that there is a mortgage by conditional sale for a period of two years, but this is followed by the particular clause which gives a right to pay in the month of Sawan within two years and on such payment from that year the property will be redeemed. Then follows the clause to the effect that if within two years there is no redemption then the mortgage by conditional sale will become an absolute sale and the mortgagee will become the permanent owner. No doubt the mortgagee could not become a permanent owner without a suit for foreclosure but that point does not arise in the present case as the question is whether a suit for redemption is or is not time-barred by Article 148, Limitation Act. It appears to me that the right of the plaintiffs to redeem began in 1872 and was subject in the first place to the bringing of a suit for foreclosure by the mortgagees which could have been brought any time from 7th August 1874 onwards. Such a suit would have terminated the right of the plaintiffs or their predecessors to redeem. The right of redemption was also subject to the law of limitation and in the present instance the law of limitation has been applied by the Court below with the finding that the suit of the plaintiffs was time-barred.
8. An argument was made by learned Counsel for the appellants that their right to redeem had accrued in 1874 and that it was a substantial right and having accrued to them should not be affected by limitation which according to him began with the first Limitation Act of 1877. Now this argument is entirely contrary to what is laid down in Sec. 3, Limitation Act of 1908, which provides that 'every suit instituted...after the period of limitation prescribed therefor by Sch. 1 shall be dismissed.' The Limitation Act does not make any distinction as to whether the cause of action arose in a suit in regard to a document before or after 1877. The Act says clearly that every suit instituted after the period prescribed therefor shall be dismissed. Various rulings have been quoted by learned Counsel for the appellants. One of the earliest of these is Vadju v. Vadju (1880) 5 Bom 22. On p. 24 the ruling laid down:
The general principle as to redemption and foreclosure is that in the absence of any stipulation express or implied to the contrary the right to redeem and the right to foreclose must be regarded as co-extensive.
9. That principle is not inconsistent with the judgment of the Court below because what the Court has found is that there was a stipulation expressed to the contrary by which the right to redeem and the right to foreclose in the present case did not begin at the same time. It appears to me from the clause that the right to foreclose did not begin until two years had elapsed, whereas the right to redeem began at once with the limitation that it must be exercised in the month of Sawan within the two years. The next ruling to which reference was made was Lasa Din v. Mt. Gulab Kunwar . No question such as arises in the present case arose in that ruling. In that ruling their Lordships of the Privy Council dealt with a mortgage of 26th July 1912 with a period of six years and with a clause which stated that if there was default in the payment of annual interest the mortgagee would have the power to realize the entire mortgage money.... 'at all time.' There was a default and the mortgagee did not sue until within the period of 12 years from the expiry of the six year period provided for repayment. The sole question was whether the suit should have been brought within 12 years from the first default in payment of interest or whether it was within time when it was brought within 12 years from the expiry of the period of six years. Their Lordships held that the suit in this latter period was within time. Learned counsel desires to argue by analogy from some observations on p. 452 and in particular on the sentence,
if the principal money is 'due' and the stipulated term has gone out of the contract, it follows, in their Lordships' opinion, that the mortgagor can claim to repay it, as was recognized by Wazir Hasan J., in his judgment in the Chief Court. Their Lordships think that this is an impossible result.
10. I do not think that these observations which were in regard to a simple mortgage which was executed in 1912 under the Transfer of Property Act can be transported and applied to the mortgage by conditional sale executed before the Act in 1872. Moreover, in the mortgage before their Lordships there was a single term of six years provided. In the mortgage before this Court the terms in the mortgage deed are more complex. The next case referred to was Sayad Abdul Hak v. Gulam Jilani (1896) 20 Bom 677. In this case there was one mortgage of 1st October 1877 with possession (not conditional sale) and a provision for foreclosure and redemption on the expiry of 10 years. There was a second mortgage of 25th September 1878 which extended the period for redemption to the expiry of 40 years after the period of 10 years in the first mortgage. It was held that this implied that the period of foreclosure was also postponed. There was a suit for redemption brought in 1892 and it was held that redemption should be allowed as the right of redemption could not be fettered. I do not find that there is anything in this ruling to support the claim of the appellants. In Raghubar Dayal v. Budhu Lal (1886) 8 All 95 there was a simple mortgage with promise to pay the principal in 10 years executed on 15th March 1883 which was after the Transfer of Property Act came into force. A suit for redemption was brought on 16th July 1884. It was held that a suit for redemption did not lie. The clause in this document was not at all similar to the clause in the document before us and moreover the mortgage was a simple one. In my opinion, in a simple or in a usufructuary mortgage, the conditions which the parties desire to express in regard to a term will be different from the conditions which the parties desire to express in a mortgage for conditional sale. In the latter mortgage one of the points which the parties desire to express is the period when foreclosure will arise and another point which they desire to express is within what period redemption is to be allowed. There is no reason to make these two periods the same and the natural agreement would be to allow redemption up to a certain date, and if not made by that date then to allow the right to foreclosure to begin. No such points arise in a simple mortgage; and in a usufructuary mortgage the important point is that the usufructuary mortgagee desires to hold possession for a certain time in order that he shall have the benefit of such a period.
11. The conditions therefore in these mortgage deeds are not the same and rulings of simple and usufructuary mortgages are not likely to throw any light on the interpretation of the language in a mortgage for conditional sale. In Huseni Khanum v. Husain Khan (1907) 29 All 471 it was laid down that under ordinary circumstances a mortgagor cannot, before the time limited for payment to the mortgagee expires, take proceedings to redeem the mortgage. This ruling did not lay down that this was a fixed rule but merely that it was the ordinary rule. The ruling therefore is not in favour of the principle enunciated for the appellants. The mortgage was one of 1830 but the actual mortgage deed was not produced and there was a dispute as to what were the terms. The case was the same which was taken in appeal before their Lordships of the Privy Council in Bakhtawar Begam v. Husaini Khanum (1914) 1 AIR PC 36. In Muhammad Husain v. Sanwal Das : AIR1934All397 the reference to the Full Bench on p. 958 shows that the question was quite a different one from the one before us. The mortgages were of 1902 and 1903 and were both simple mortgages and therefore came under the Transfer of Property Act. Moreover, the language used was not at all similar to the present case. In Akbar Husain v. Shah Ahsanul Haq : AIR1932All155 there was a suit for redemption of a usufructuary mortgage executed on 14th June 1923. On p. 156 learned Counsel invites attention to the statement:
Within the term the mortgagee cannot enforce he mortgage and within the term the mortgagor cannot sue for redemption. It was no doubt open to the parties to fix two different dates for the enforcement of the rights of the mortgagor and the mortgagee respectively, but where only one term is fixed it is to be recorded and that term is meant equally for both.
12. This is quoted from Bakhtawar Begam v. Husaini Khanum (1914) 1 AIR PC 36. In this ruling on page 199 their Lordships of the Privy Council stated:
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 this specified period, but there is nothing in law to prevent the parties from making a provision that the mortgagor may discharge the debt within the specified period and take back the property. Such a provision is usually to the advantage of a mortgagor.
13. These are provisions which were made in regard to a mortgage of 6th January 1830. As that mortgage was prior to the Transfer of Property Act their Lordships therefore laid down that in regard to mortgages prior to the Transfer of Property Act it was open to the parties to make provisions by which the mortgagor might discharge the debt within the specified period and take back the property. The mortgage in question was one which arose under two documents, a sale deed and an agreement for return forming together a mortgage of conditional sale. This ruling is authority against the proposition advanced by Mr. Kunzru for the appellants that the rights of redemption and of foreclosure must be coextensive in time and that it is not open to the parties to make provision to the contrary. In Shyam Lal v. Jagdamba Prasad, : AIR1928All131 it was laid down that in the absence of any agreement express or implied to the contrary the rights to redeem and the right to foreclose must be regarded as co-extensive. This proposition however does not help the appellants because there is, in my opinion, in the present mortgage deed a provision which gives the right of redemption at an earlier period than the right for foreclosure. In Kalka Prasad v. Bhuiyan Din (1909) 31 All 300 there was a sale deed with an agreement to re-convey of the year 1845. On page 303 the judgment stated:
We think that in each case we must look to the nature of the particular mortgage and the surrounding circumstances to ascertain what the intention of the parties was.
14. I do not think that this proposition will assist the appellants. Having regard to the circumstances of the present case I find two reasons against this appeal succeeding. The first reason is that there was a statutory right under the Bengal Regulations No. 1 of 1798 and No. 17 of 1806 which were in force in 1872 and this statutory right gave the mortgagors the right to redeem within any stipulated period provided in the deed. Therefore, even if there had been only a period of two years in the deed, the statutory right existed by which the mortgagors could have redeemed from the date of execution and the suit would therefore be barred by the period of limitation in question under Article 148 of the present Limitation Act. Secondly, I find that the interpretation of the clause in the deed itself does give this right of redemption within the period of two years and in the first year of that period in the part of the month of Sawan which remained from the date of execution. For these two reasons this suit would be time-barred. No further point has been raised in the grounds of objection to the decree. Accordingly, in my opinion the appeal should be dismissed. There is a cross-objection in regard to costs. The lower Appellate Court decreed that the defendants will bear their own costs although the suit was to be dismissed. The defence of limitation is a technical one and it is for this reason that the Court below exercised its discretion and directed that each party would pay their own costs. I do not see any reason for interfering with this discretion and I would dismiss the cross-objection but without costs.
15. I agree that the appeal should be dismissed. In my judgment the point that arises for decision in this case is governed by the principles laid down by their Lordships of the Privy Council in the case in Bakhtawar Begam v. Husaini Khanum (1914) 1 AIR PC 36. The suit out of which this appeal has arisen was one for the redemption of a mortgage by conditional sale made on 7th August 1872 by Yusuf Ali and Ausaf Ali in favour of Ali Asghar. We are informed by learned Counsel appearing for the appellants that the corresponding Hindi date for 7th August 1872 was Sawan Sudi 3, Sambat 1929. The plaintiffs are the representatives of the mortgagors and the principal defendants are the representatives of the mortgagee. The mortgage deed in question, after reciting that the total amount due from the mortgagors to the mortgagee on the date of the execution of the document was Rs. 1203-1-6, and setting out certain other preliminary facts proceeds thus:
16. Baewaz mubligh 1203-1-6 mazkura bala he return miadi do sal yani bai bilwafa har diya wa tamam wa zare saman apna murtahin se wasulpaya ab dame wa dirame yaftani mera zimme murtahin ke baqi nahin hai aur iqrar yeh hai ki andar do sal he jab rupiya mahina Sawan men naqd yekmusht ada kar den tab us sal jaedad hagiyat apni fak rehan kara lewen aur agar andar do sal he rupiya ada na ho to bad do sal he yeh bai bilwafa bai kamil ho jaega aur murthain malik mustaqil shai marhuna ka hoga.
17. The suit was filed on 7th August 1934. The main defence was one of limitation. It was contended by the defendants that, although a term of two years was fixed in the mortgage deed, yet the later clause clearly conferred on the mortgagors the right to redeem before the expiry of that term if they paid the mortgage money in the month of any Sawan within that period of two years, that the right to redeem accrued to the mortgagors at least in the month of Sawan in 1873 A.D., and that the suit, having been brought more than 60 years thereafter, was barred under Article 148, Limitation Act. The first Court repelled the contention of the defendants and decreed the suit but the lower Appellate Court has held that the suit was barred by time. The learned Counsel appearing for the appellants has urged that the general principle as to redemption and foreclosure is that, in the absence of any stipulation, express or implied to the contrary, the right to redeem, and the right to foreclose are co-extensive, and has cited the case in Vadju v. Vadju (1880) 5 Bom 22. His argument is that there is no 'stipulation, express or implied, to the contrary' in the mortgage deed in question. He has further argued that, on a true construction of the deed, the mortgagee was not entitled to foreclose before the expiry of the two years mentioned in the deed and that it must therefore be held that the mortgagors also were not entitled to redeem at any time before the two years had expired. He urges therefore that the right to redeem accrued for the first time on 7th August 1874 and that the suit, having been filed on 7th August 1934, was within time.
18. The question that arises for consideration is whether the learned Counsel is right in contending that there is no 'stipulation to the contrary' in the mortgage deed in question. It seems to me that there is a clear stipulation in the deed which expressly provides for an exception to the general principle relied upon by the learned Counsel. There is no doubt that it is open to the parties to a mortgage transaction to enter into an agreement that the mortgagor shall be at liberty to redeem within that term. In Bakhtawar Begam v. Husaini Khanum (1914) 1 AIR PC 36 their Lordships of the Privy Council observed on p. 199 of the record:
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. But there is nothing in law to prevent the parties from making a provision that the mortgagor may discharge the debt within the specified period and take back the property. Such a provision is usually to the advantage of the mortgagor.
19. It is not necessary in my opinion to consider whether the argument of the learned Counsel for the appellants that the mortgagee in this case could not foreclose before the expiry of the term of two years is correct or not. Assuming that his contention is well founded, it is open to the parties to agree that, although the mortgagee shall not be entitled to foreclose before the expiry of the term, the mortgagor shall be entitled to redeem before its expiry. If I may say so with respect, the point has been well put by Niamatullah J. in his judgment in the lull Bench case in Muhammad Husain v. Sanwal Das : AIR1934All397 of the record:.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.
20. The only question therefore that arises for consideration is whether, on a true construction of the mortgage deed in question, there is a stipulation entitling the mortgagor to redeem before the expiry of the term fixed. It seems to me that that question must, in view of the language of the deed, be answered in the affirmative. I have already quoted the relevant passage. The provision that whenever the mortgagor paid off the mortgage money in any Sawan within the two years he would be entitled in that year to redeem the mortgage clearly shows to my mind that the intention of the parties was that the mortgagor was to have the right to redeem before the expiry of the term of two years. It is hardly necessary to point out that one deed cannot be interpret ted in the light of the language used in other deeds, as was observed in Kalka Prasad v. Bhuiyan Din (1909) 31 All 300 at page 303:
We think that in each case we must look to the nature of the particular mortgage and the surrounding circumstances to ascertain what the intention of the parties was.
21. The language of the deed, what we have to consider, leaves no room for doubt in my opinion that the parties clearly intended, that the mortgagor would have the right to redeem before the expiry of the term. In Bakhtawar Begam v. Husaini Khanum (1914) 1 AIR PC 36 their Lordships, after making the observations quoted above, proceeded to consider whether in the case before them there was any stipulation entitling the mortgagor to discharge the debt within the specified period and take back the property. Their Lordships found that it was admitted in paras. 2 and 8 of the plaint in that case that there was such a stipulation between the parties. That being so, their Lordships held that the suit for redemption was barred. It is to be noted that in that case the mortgage deed itself was not on the record and the only evidence of the transaction was to be found in a certain proceeding of the Collector's Court. In the case before us the deed has been filed and, as already observed, on a true interpretation of its language the only conclusion possible is that the parties did enter into an agreement laying down the clear 'stipulation to the contrary.' The general principle relied upon by the learned Counsel, namely that the right to redeem and the right to foreclose are co-extensive, is therefore not applicable in the present case.
22. Learned counsel for the appellants has relied on the ruling of their Lordships of the Privy Council in Lasa Din v. Mt. Gulab Kunwar . The point that arose for their Lordships' consideration in that case was in my opinion a different one. What their Lordships had to consider was whether, as the result of an option given to the mortgagee, to call in his money before the expiry of the term fixed, the 'money becomes due' within the meaning of Article 132, Limitation Act. The question that arises in the case before us, on the other hand, is when the right to redeem or to recover possession accrued to the mortgagors within the meaning of Article 148, Limitation Act. The other cases cited by the learned Counsel for the appellants are also inapplicable as has been pointed out by my learned brother. I also agree that the cross-objection is without force and should be dismissed, but would make no order as to costs.
23. The appeal is dismissed with costs throughout. The cross-objection is dismissed, but no order as to costs of the cross-objection is made.