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Radha Krishna Vs. Anoop Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 102 of 1965
Judge
Reported inAIR1973MP248; 1973MPLJ103
ActsLimitation Act, 1908 - Sections 19 and 20(2)
AppellantRadha Krishna
RespondentAnoop Chand and ors.
Advocates:H.G. Mishra, Adv.
DispositionAppeal allowed
Cases ReferredEressa Menon v. Abdul Rahiman
Excerpt:
.....it is stated in 73 cjs 162:-the word 'land' has, in law, a well settled and a legal meaning. .the word 'land' in its legal signification, comprehends any ground, soil, or earth whatever, and also has an indefinite extent upward as well as downwards, and therefore includes all castles, houses, and other buildings standing thereon. neither the language of the section, nor the principle underlying it persuades us to read the word 'rent' as ejusdem generis with 'produce'.we are clearly of the view that by adding the word 'rent' in section 20 (2), the legislature gave full extent to its intention and enlarged the field of the section which is based on a sound principle. --apart from the fact that the rule must be continued within narrow limits, and general or comprehensive words should..........the decision in gudur ramakrishna reddi v. muniratnammal, air 1954 mad 890 and held that the word 'land' in section 20 (2) of the act is restricted in its meaning to cultivable lands and excludes from its purview a house or a building, or any site on which a house might have been built. it has been held in the above madras case as follows:--'it appears to us, therefore, that the word 'rent' in section 20 (2) must be construed as 'ejusdem generis' with 'produce' and from such a reading it would follow that 'land' in that sub-section could only refer to cultivable land and would not include either a house or even the site on which a house, might have been built.'their lordships of the madras high court traced the legislative history of section 20 (2) of the act.12. in the limitation.....
Judgment:

Shiv Dayal, J.

1. This appeal arises from a suit for sale of mortgaged property consisting of a two-storeyed building situate at Shivpuri.

2. On August 11, 1943, a mortgage deed (Ex. P-2) for Rs. 8,500/- was executed by Anoopchand (defendant No. 1), Mehar-chand (defendant No. 2) and Santokchand, father of Vijaychand (defendant No. 3). This was a registered mortgage deed in which it was covenanted that the mortgage property could be redeemed on the expiry of five years.

3. Again, on August 14, 1943, a second mortgage deed (Ex. P-3) was executed by the three mortgagors, (sons of Sobha-chand) for Rs. 2,500/-. The new mortgage debt was repayable along with, the earlier one.

4. These mortgage deeds were executed in favour of Pyarelal and Amarlal (defendant No. 4), Pyarelal is dead. Jagdish Prasad (defendant No. 5) and Kishanlal (defendant No. 6) are sons of Amarlal.

5. On August 11, 1960, Amarlal, Jagdish Prasad and Kishanlal transferred to Radhakrishna (plaintiff) their mortgagee rights under a registered deed of sale (Ex. P-l) for Rs. 11,000/-.

6. On August 13, 1960, Radhakrishna, purchaser of the mortgagee rights, brought a suit for sale of the mortgage property for the recovery of Rs. 11,000/-, principal mortgage money under the two mortgage deeds. It is common ground that the mortgagees were, at all times, in possession of the mortgage property and were recovering rent.

7. Defendants Nos. 1, 2 and 3 resisted the suit on various grounds. Defendants Nos. 4, 5 and 6 admitted the plaintiff's claim Meharchand (defendant No. 2) did not file any written statement. Anoopchand (defendant No. 1), while admitting execution of the mortgage deeds and also the receipt of consideration, contended that the recovery of Rs. 4,500/- had become barred by time and that the defendant Amarlal had agreed to discharge him from the liability of both the mortgages inasmuch as the mortgage property had fallen to the share of Santokchand in the family partition. Vijaychand (defendant No. 3), while resisting the suit, inter alia, denied the execution of both the mortgage deeds and also sale to the plaintiff. He further contended that the mortgages were usufructuary. The suit for sale was not maintainable. Bar of limitation was pleaded in respect of both the mortgages.

8. The trial Court recorded the following findings. Santokchand and defendants Nos. 1 and 2 executed two mortgage deeds dated August 11, 1943 and August 14, 1943. They were registered by competent authorities. The mortgagees (defendants Nos. 4, 5 and 6) transferred their mortgagee rights to the plaintiff on August 11, 1960. Santokchand and defendants Nos. 1 & 2 effected a partition of the family property among themselves, but Anoopchand was not discharged from the liability. A suit for sale was maintainable. Amarlal did not receive Rs. 11,000/- in full satisfaction of the mortgage debt. Thus, all the issues were decided in favour of the plaintiff, except No. 3 on the question of limitation, which was decided against him; the suit was dismissed as barred by time. It was held that the cause of action for the suit arose on August 11, 1948, when both the mortgage debts became payable, so that the last date for the suit to be brought was August 11, 1960, and since the suit was actually instituted on August 13, 1960, it was barred by time.

9. The only question in this appeal is whether the suit is within time by application of Section 20 (2) and Section 19 of the Limitation Act, 1908, which was in force when the suit was instituted.

10. The mortgagees were in possession of the suit house. They were receiving rents, which amounted to part payment within the meaning of Sub-section (2) of Section 20 of the Act, which reads thus:--

'Where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment for the purpose of Sub-section (1).'

Therefore, by legal fiction, the requirement of Sub-section (1) of Section 20 that part payment must be in the handwriting of, or in a writing signed by, the person making the payment, is dispensed with. This Sub-section applies to all mortgagees in possession but it is necessary that the mortgagee must be in possession.

11. The learned Judge of the Trial Court did not give to the plaintiff benefit of Section 20 (2) of the Act, because he followed the decision in Gudur Ramakrishna Reddi v. Muniratnammal, AIR 1954 Mad 890 and held that the word 'land' in Section 20 (2) of the Act is restricted in its meaning to cultivable lands and excludes from its purview a house or a building, or any site on which a house might have been built. It has been held in the above Madras case as follows:--

'It appears to us, therefore, that the word 'rent' in Section 20 (2) must be construed as 'ejusdem generis' with 'produce' and from such a reading it would follow that 'land' in that sub-section could only refer to cultivable land and would not include either a house or even the site on which a house, might have been built.'

Their Lordships of the Madras High Court traced the legislative history of Section 20 (2) of the Act.

12. In the Limitation Act of 1859, there was no provision corresponding to Section 20.

13. In the Limitation Act of 1871, there was Section 21 corresponding to Section 20 (1) of the 1908 Act. However, that section did not contain a provision corresponding to Sub-section (2) of Section 20.

14. In the Limitation Act of 1877, for the first time, a provision corresponding to Section 20 (2) of the present Act was inserted, but it was somewhat different. It read thus:--

'Where mortgaged land is in the possession of the mortgagee, the receipt of the produce of such land shall be deemed to be a payment for the purpose of this section.'

15. The reasoning advanced in the Madras case is that the provision contemplated only lands capable of cultivation and yielding 'produce'. Further, since it was held in Ummer Kutti v. Abdul Kadir, (1878-80) ILR 2 Mad 165, that when agricultural land was mortgaged with possession and the mortgagor took a lease of the land back from the mortgagee and paid rent under the lease, the receipt of rent did not fall within the provision, it was to remedy this anomalous position that in Section 20 (2) of the 1908 Act, receipt of rent was also included as amounting to payment for the purposes of Section 29 (1).

16. However, the Madras High Court held that the word 'rent' in Section 29 (2) must be construed as 'ejusdem generis' with 'produce' and, therefore, the word 'land' necessarily means cultivable land and it excludes from its purview a house or a site on which it has been built.

17. With greatest respect, we are unable to agree with their Lordships of the Madras High Court in the view they took. In our opinion, Sub-section (2) of Section 20 is applicable equally to a house and the site on which it stands, if mortgaged with possession, as to cultivable land. In Stroud's Judicial Dictionary (3rd Edition), it is stated thus:--

'Though the word 'land' anciently meant 'whatsoever may be plowed' and signified 'nothing but arable land' yet in and since the time of Lord Coke, and now, it 'Com-prehendeth any ground, soil, or earth, whatsoever', whether of freehold or copyhold tenure.'

' 'Land' or 'lands' not only means the surface of the ground, but also everything (except gold or silver mines) on or over or under it, for cujus est solum ejus est usque ad coelum ct ad inferost Lord Coke calls the earth 'the suburbs of heaven'. But though a devise of 'lands' will generally carry the houses on it, yet of course, this does not hold where the testator evidently uses the term in contradistinction to 'house' '.

'In all Acts of Parliament since 1950 'land' includes 'messages' tenements and hereditaments, houses and buildings, of any tenure, unless where there are words to exclude houses and buildings, or to restrict the meaning to tenements of some particular tenure (Interpretation of Acts Act, 1850).'

In Jordan v. May, (1947) KB 427 it is held that land includes buildings and any machinery which was so affixed to the freehold as to become part of it. In Megh Raj v. Allah Rakhia, ATR 1947 PC 72, while interpreting the word 'land' in Item 21, List II, of Schedule 7, of the Government of India Act, 1935 the Privy Council held that the word 'land' should receive the widest construction, unless for some reason it is cut down.

18. The word 'land' in its general acceptation includes houses and the sites on which houses are built. For instance, in Article 125 of the Limitation Act, the word 'land' includes a house and its site. (See Ralya Ram v. Sher Singh, (1910) 5 Ind Cas 842; Soman Singh v. Uttam Chand, TLR I Lah 69 = (AIR 1920 Lah 424) and Must. Amir Begum v. Must. Hussain Bibi, 58 Ind Cas 333 = AIR 1922 Lah 98).

19. It is stated in 73 CJS 162:--

'The word 'land' has, in law, a well settled and a legal meaning. The word is a term of art, but it may be used in different senses ..... It includes not only the face of the earth, but everything under it or over it, and has in its legal signification an indefinite extent upward and downward, giving rise to the maxim, 'Cujus est solum ejus est usque an coelum'. It includes not only the soil or earth, but also things of a permanent nature affixed thereto, whether by nature or by the hand of man..... It also includes structures of a permanent character erected on the land, such as buildings, fences, bridges.....'(Pp. 162, 163, J64)

20. In Words and Phrases (Vol. 24), the statement is:--

'At common law, 'land' includes all buildings of a permanent nature standing thereon (P. 280). The word 'land' includes not only the soil, but everything attached to it, whether attached by the course of nature, as trees, herbage, and fences. ............ The word 'land' in its legal signification, comprehends any ground, soil, or earth whatever, and also has an indefinite extent upward as well as downwards, and therefore includes all castles, houses, and other buildings standing thereon.'

21. We see no warrant for reading the word 'rent' as ejusdem generis with 'produce'. The word 'rent' is not, in its proper acceptation, limited to rent from agricultural land. Neither the language of the section, nor the principle underlying it persuades us to read the word 'rent' as ejusdem generis with 'produce'. We are clearly of the view that by adding the word 'rent' in Section 20 (2), the legislature gave full extent to its intention and enlarged the field of the section which is based on a sound principle.

22. It was held in Anderson v. Ander-son, (1895) 1 QB 749, that the ejusdem generis rule is one to be applied with caution and not stretched too far. See also Hynes v. Hynes, (1950) 2 All ER 879. To invoke the application of ejusdem generis rule, there must be a distinct genus or category. The specific words must apply not to different objects of a widely different character, but to something which can be called class or kind of objects. Where this is lacking, the rule cannot apply. See Hood-Barrs v. I. R. C., 1946 All ER 768. It was held in Glasgow Corporation v. Glasgow Trawmay and Omnibus Co., 1898 AC 631 at p. 634 that where the words are wide in their application, they are not to be qualified on the ground of their association with other words. In Alien v. Emmerson, (1944) 1 KB 362, a local Act required that 'theatres and other places of public entertainment' should be licensed. A question arose whether a fun fair, for which no fee was charged for admission, was within the Act. It was held to be so and that the ejusdem generis rule did not apply to confine the words 'other places' to place of the same kind as theatres.

23. In State of Bombay v. Ali Gul-shan, AIR 1955 SC 810, it was held:--

'Apart from the fact that the rule must be continued within narrow limits, and general or comprehensive words should receive their full and natural meaning unless they are clearly restrictive in their intendment. It is requisite that there must be a distinct genus, which must comprise more than one species, before the rule can be applied.'

24. In Lila Vati Bai v. Bombay State, AIR 1957 SC 521 it was observed:--

'The rule of ejusdem generis is intended to be applied where general words have been used following particular and specific words of the same nature on the established rule of construction that the Legislature presumed to use the general words in a restricted sense; that is to say, as belonging to the same genus as the particular and specific words. Such a restricted meaning has to be given to words of general import only where the context of the whole scheme of legislation requires it But where the context and the object and mischief of the enactment do not require such restricted meaning to be attached to words of general import, it becomes the duty of the Courts to give those words their plain and ordinary meaning.'

25. We are clearly of the view that the word 'rent' cannot be read as ejusdem generis with 'produce' in Section 20 (2) of the Act.

The principle of Sub-section (1) of Section 20 of the Act is that a payment on account of a debt or of interest should give a fresh start of limitation for a suit for debts. In Rama Shah v. Lal Cnand, 67 Ind App 160 = (AIR 1940 PC 63 at p. 67) the Privy Council observed thus:--

'The Indian Legislature may well have thought that a payment if made on account of the debt and evidenced by writing gave the creditor some excuse for further delay in suing, or was sufficient new proof of the original debt to make it safe to entertain an action upon it at a later date than would otherwise have been desirable.'

The principle underlying Sub-section (2) of Section 20 is that where the mortgagee is in possession, the receipt of rent by him should be deemed to be payment and the legal fiction should dispense with the requirements of the section as to handwriting and signature. Sub-section (2) is not controlled by Sub-section (1) The receipt of rent by the mortgagee, by legal fiction, should dispense with the requirements of the section as to handwriting and signature. Sub-section (2) is not controlled by Sub-section (1). The receipt of rent by the mortgagee, by legal fiction, is treated as payment by the mortgagor. The object of the section Is clearly to benefit the mortgagee in possession who receives rent or produce from the land. This view was also taken in Eressa Menon v. Abdul Rahiman, AIR 1926 Mad 1061. Thus, a receipt of the usufruct will be deemed to be payment in respect of the mortgage within the definition of Section 20 (1) of the Act and would give a fresh start of limitation from the date of such payment.

26. We are unable to find any distinction why this principle should apply to receipt of rent from cultivable land and not to rent from a building. This question was posed before the Division Bench of the Madras High Court, AIR 1954 Mad 890 and was answered thus:--

'It is not for us to speculate as to why the mortgagee is not given the benefit of the extended period of limitation when he is put in possession of a house and not of land. We have only to construe the language of the provision as it is.'

With the utmost respect, we do not find anything in the language of the section to hold contrary to what we have said. We, therefore, hold that Section 20 (2) of the Limitation Act, 1908, applies to rent received by a mortgagee with possession, not only of cultivable land but also in respect of a house and house site. The plaintiff is, therefore, entitled to the benefit of that section and the suit must be held to be within limitation.

27. There is yet another ground for which the suit must be held within limitation. It is by giving 'the plaintiff benefit of Section 19 of the Limitation Act It may be recalled that there was a partition among the three brothers, Anoopchand, Santokchand and Meharchand. In this Court, the plaintiff-appellant made an application for leave to amend the plaint. We granted him leave, framed the following issues and remitted them for enquiry and finding by the Trial Court:--

'1 (a) Whether Santosh Kumar executed the partition deed dated 7-7-40.

(b) Whether it amounts to acknowledgment within the meaning of Section 19 of the Limitation Act, 1908.

2 (a) Whether the said deed of partition was executed by Meharchand and Anoopchand also.

(b) Whether it amounts to acknowledgment within the meaning of Section 19 of the L. Act, 1908.'

All the issues have been answered by the learned Additional District Judge in the affirmative. When he gave opportunity to the parties to produce evidence in respect of the new issues framed by this Court, the plaintiff examined Shrinarayan Nigam (P. W. 3) and Meharchand (P. W. 9). The defendant did not examine any witness. The partition deed (Ex. D-2) has been proved by the evidence of Shrinarayan Nigam (P. W. 3) and Meharchand (P. W. 9). No one has appeared before us to challenge this finding. We agree with the learned Additional Judge in his finding that the partition deed dated July 7, 1950, registered on July 8, 1950 (Ex. D-2), was executed by all the three mortgagors, Anoopchand, Santokchand and Meharchand.

28. The partition deed contains an express admission of the existing liability under the two mortgage deeds of August 11, 1943 and August 14, 1943. This acknowledgment is clearly within Section 19 of the Limitation Act, 1908. Fresh period of limitation for the present suit started on July 7, 1950. Since the suit was instituted on August 13, 1960, it must be held within limitation.

29. For these reasons, Issue No. 3 must also be decided in favour of the plaintiff and the finding of the Trial Court on that issue, in the judgment appealed from, must be set aside and it must be held that the suit is within time by virtue of both Section 20 (2) and Section 19 of the Limitation Act.

30. No other point was raised before us.

31. The appeal is allowed. The judgment and decree of the Trial Court are set aside. A preliminary decree for sale shall be passed in favour of the plaintiff-appellant against Anoopchand, Meharchand and Vijay-chand (defendants Nos. 1, 2 and 3), who shall also pay costs to the plaintiff in both the Courts. The other three respondents, Amarlal, Jagdish Prasad and Kishanlal, shall beal their own costs in both the Courts.


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