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Smt. Gulkandi and ors. Vs. Harnarayan Phoolchand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 635 of 1979
Judge
Reported inAIR1980MP111; 1981MPLJ473
ActsTransfer of Property Act, 1882 - Sections 60; Transfer of Property (Amendment) Act, 1929; Limitation Act, 1908 - Schedule - Article 148; Limitation Act, 1963 - Schedule - Article 61
AppellantSmt. Gulkandi and ors.
RespondentHarnarayan Phoolchand and ors.
Appellant AdvocateR.C. Lahoti, Adv.
Respondent AdvocateN.K. Jain, Adv.
DispositionRevision dismissed
Cases ReferredShiamlal v. Jagdamba
Excerpt:
.....there are always certain mutual rights and obligations between the parties, and the rights of the mortgagee to sell or to foreclose are co-extensive with the right of the mortgagor to redeem......myad' in a deed of mortgage is not enough to infer an agreement that the mortgagor was given the right to redeem even before the expiry of the stipulated period for which the mortgage with possession was effected.7. the right of redemption of the mortgagor is the one as provided under section 60 of the transfer of property act. the provisions contained in section 80 of the transfer of property act entitle the mortgagor to redeem the property at any time within the period of limitation after the principal money had become due. what is of importance is the the use of the term 'due' in place of the word 'payable' as stood in the unamended section prior to 1929. actually speaking, this change was necessitated to resolve the diversity of opinion which existed on the meaning given to the.....
Judgment:
ORDER

J.P. Bajpai, J.

1. The short point involved in this revision at the instance of the defendants relates to the question of commencement of the period of IN limitation for bringing a suit for redemption of a mortgage.

2. It was not disputed that the transaction in between the parties was of a mortgage of the immoveable property comprising of two shops with possession for securing the repayment of a loan of Rs. 50,000/-. It was agreed in between the parties that since tha mortgage was with possession there will be no liability on the mortgagor for payment of interest. The term of the mortgage with possession was that of one year. As disclosed in the deed of mortgage, the mortgagor was entitled to redeem the mortgage on payment of the amount under the mortgage within the period of one year, The deed of mortgage, however, contained one more clause which was, undisputedly, not enforceable being a clog on the equity of redemption. The said clause mentioned that on failure of the mortgagor to repay the amount within a period of one year, the transaction would be deemed to be a sale of tha property in question, and that the mortgagor will be left with no right, title or interest in the same after tha expiry of the said period. The mortgage was effected on 5th January 1948. The plaintiffs served the defendant-mortgagee with a notice asking him to redeem the mortgage on payment of the amount of loan. This notice was served on 27th December 1977. However, the defendants did not respond to the same and did not hand over possession of the mortgaged property. The plaintiffs thereafter, moved an application, as contemplated by Section 83 of the Transfer of Property Act, after depositing the amount of Rs. 50,000/- remaining due on the mortgage on 3-1-1978, The defendants. however, objected and. therefore, those proceedings became infructuous. Under these circumstances, the plaintiffs were constrained to institute the suit giving rise, to this revision claiming the right of redemption. The suit was instituted on 14th October, 1978.

3. The applicant-defendants raised an objection to the maintainability of the suit on the ground of limitation, by contending that since the mortgage was effected on 5-1-1948 and the plaintiffs were free to repay the amount of loan on any day even before the expiry of the period of one year as disclosed in the document, the amount under the mortgage became due not on the expiry of the period of one year, as shown in the deed of mortgage, bui immediately after 5-1-1948 itself, i.e., the date of mortgage, and. therefore, the prescribed period of limitation being 30 years, the suit instituted on 14-10-1978 was barred by time. A preliminary issue was framed by the trial Court and the same had been decided against the defendants by the order impugned.

4. Before this Court, it was contended that though the duration of the mortgage with possession was shown to be one year, the language used in the deed of mortgage made it clear that the plaintiffs were fully entitled to redeem the mortgage even before the expiry of one year at any time after the execution of the mortgage. It was also pointed out that irrespective of the unenforceability of the clause declaring the transaction to be a deed Of sale on failure of the plaintiffs to repay the amount of loan under the mortgage within one year, the said condition did suggest that the plaintiffs were free to repay the amount before the expiry of the period of one year. The argument was that this was sufficient to infer that the amount became due and payable immediately after 5-1-1948 itself at any time before the expiry of the period of one year and, therefore, the plaintiff cannot contend that the amount under the mortgage became due only on the expiry of the period of one year, i.e., on 4-1-1949, and thereby the suit instituted on 14-10-1978 was within time. Thus according to the defendants, the period of limitation started running immediately after 5-1-1948 itself and the prescribed period of 30 years (having expired, the suit) was liable to be dismissed on the ground of limitation.

5. After hearing the learned counsel for both the sides, this Court is of the opinion that the trial Court was right in rejecting the objection raised by the defendants. The trial Court was fully justified in holding the suit to be within the period of limitation inasmuch as the same had been instituted before the expiry of 30 years. The amount secured under the mortgage became due and payable only after the expiry of one year from 5th January 1948. Apparently, the condition as inserted in the deed of mortgage, about treating the transaction of mortgage as that of a gale in case of default of repayment of the amount within the period of one year was not enforceable according to law, being a clog on the equity of redemption. The same, therefore, being ab initio illegal and ineffective could not be relied for construing the contents of the deed of mortgage, in the manner as suggested by the defendants.

6. According to the well-settled legal position, in every transaction of mortgage, in the absence of any agreement to the contrary, there are always certain mutual rights and obligations between the parties, and the rights of the mortgagee to sell or to foreclose are co-extensive with the right of the mortgagor to redeem. In the present case, since the duration of the mortgage with possession was one year, the mortgagee could not sue the plaintiff-mortgagor and ask him to repay the amount of loan under the mortgage before the stipulated period. There is nothing to infer any other agreement to the contrary which may make the case as an exception to the aforesaid ordinary rule. It is true that the words used in the deed of mortgage were 'Myad Mukarrar ke under' (within the period agreed), but the same in itself will not be sufficient to infer that the intention of the parties was that the ordinary principle should not prevail and that the mortgagor might redeem even before the expiry of the period agreed. In order to infer such an intention the court always expects some stronger expression than that of the use of the words 'within the period agreed'. The mere use of the words 'under myad' in a deed of mortgage is not enough to infer an agreement that the mortgagor was given the right to redeem even before the expiry of the stipulated period for which the mortgage with possession was effected.

7. The right of redemption of the mortgagor is the one as provided under Section 60 of the Transfer of Property Act. The provisions contained in Section 80 of the Transfer of Property Act entitle the mortgagor to redeem the property at any time within the period of limitation after the principal money had become due. What is of importance is the the use of the term 'due' in place of the word 'payable' as stood in the unamended section prior to 1929. Actually speaking, this change was necessitated to resolve the diversity of opinion which existed on the meaning given to the word 'payable'. Despite certain sum remaining payable it may not be treated as due if theparties had agreed to fix a particulardate or duration making it obligatoryon the part of the debtor to repay theloan within that period. In such acase the creditor could demand payment as of right and institute proceedings to enforce the right of recoveryby sale or foreclosure only after theexpiry of the said period agreed. Arti-cle 148 of the old Limitation Act corresponding to that of Article 61 of the new Limitation Act provides the start-ing point of limitation by using thelanguage 'when the right to redeemaccures to the mortgagor.' This provision read with Sec. 60 of the Transfer of Property Act indicates that theright to redeem accrues to the mort-gagor at any time after the principalmoney had become due. It would beputting a very narrow interpretationon the words 'when the right to redeem accrues to the mortgagor' byconstruing that the right to redeem ac-crued to the mortgagor even on thedate of mortgage itself, particularlywhen there is a stipulated period andbefore the expiry of which the mort-gagee could not have the right to foreclose or to claim the amount due underthe mortgage.

8. During the course of hearing, reference was made to a Division Bench decision of the Allahabad High Court in thp case of Shiamlal v. Jagdamba AIR 1928 All 131 where the words had been interpreted. Reliance was also placed on a decision reported in AIR 1956 Hyd 172. The position as laid down by the Privy Council (sic). The view which I have taken above finds support from these cases also.

9. In view of the discussion above, the right to redeem accrued to the plaintiffs only on the expiry of the period of one year, i.e. 4-1-1949, and the suit having been instituted on 14-10-1978 is apparently within the period of limitation. The order impugned made by the trial Court is sustained. This revision is accordingly dismissed with costs Counsel's fee at Rs. 50/- if certified. Parties are directed to appear before the trial Court on 7-1-1980.


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