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Shib NaraIn and anr. Vs. Chitru - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H389
AppellantShib NaraIn and anr.
RespondentChitru
Cases ReferredBageshari Tewari v. Nandoo Singh
Excerpt:
..... - mital, who appears for the defendants, contends that as the mortgagors had a right to redeem property on the first day of jeth (that is on 27th may 1885) the right to redeem the property must be deemed to have accrued on that date and consequently that the application which was presented to the assistant collector on 9th june 1945 having been made after the expiry of a period of sixty years was clearly barred by time. he accordingly, contends that the application made to the assistant collector on 9th june 1945, having been made within a period of sixty years from 26th june 1885, must be deemed to have been made within the period prescribed therefor under the act of 1913. 5. it is a well-known principle of law that in the absence of a stipulation to the contrary the right to..........by time. mr. mital, who appears for the defendants, contends that as the mortgagors had a right to redeem property on the first day of jeth (that is on 27th may 1885) the right to redeem the property must be deemed to have accrued on that date and consequently that the application which was presented to the assistant collector on 9th june 1945 having been made after the expiry of a period of sixty years was clearly barred by time. mr. shamair chand, on the other hand, contends that the right to redeem did not accrue on the first day of jeth but that this right was available to the mortgagor throughout the month of the jeth and could be exercised at any time during that month. he accordingly, contends that the application made to the assistant collector on 9th june 1945, having been made.....
Judgment:

Bhandari, J.

1. The sole point for decision in the present cage in whether a certain order made by an Assistant Collector of the first grade in respect of an application for redemption of certain property is incorrect and ineffective against the plaintiff. It appears that on 17fch July 1884, one Sada Ram an ancestor of Ghatru plaintiff, mortgaged a plot of land measuring 4 bighas 6 biswas to Sher Singh, an ancestor of Shib Narain and Balwant, defendants. The mortgage was for a sum of Rs. 500. On 9th June 1945 the plaintiff applied to the Assistant Collector of Sonepat for redemption of the property under the provisions of the Redemption of Mortgaged Lands Act, 1913. It was argued before the Assistant Collector that the application was barred by time as it was presented after the expiry of a period of sixty years from the date on which the right to redeem accrued. The learned Assistant Collector came to the conclusion that the matter was too complicated to be decided in summary proceedings and referred the parties to a civil Court. This was on 3rd August 1945. On 27th August of the same year the plaintiff brought the present suit under Section 12, Punjab Redemption of Mortgaged Lands Act, 1913, to establish his rights in the mortgaged property. The Courts below found in his favour and held that the order of the Assistant Collector, dated 3rd August 1945, was wrong and inoperative and that he was entitled to recover possession of the land on payment of a sum of Rs. 500. The defendants, who are successors-in-interest-of the original mortgagee Sher Singh, are dissatisfied with the order and have come to this Court in second appeal.

2. The mortgage-deed dated 17th July 1884, empowers the mortgagor to redeem the property in the month of Jeth. The actual words used in - the document were:

Jis waqt kul Zar-i-rahn asal bila sud bamah jeth havale murtahin kar dunga fuk ul rahn arazi marhuna kara lunga.

The month of Jeth immediately following the date of the mortgage corresponds to the period 27th May 1685 to 26th June 1885.

3. Article 148, Limitation Act empowers a mortgagor to recover possession of mortgaged property within a period of sixty years from the date on which the right to redeem or to recover possession accrues. Section 4, Punjab Redemption of Mortgaged Lands Act, 1913, enables a mortgagor to present a petition to the Collector for redemption of a mortgage at any time after the money becomes payable and before a suit for redemption is barred.

4. The first question arising in the appeal is whether the application which was presented to the Assistant Collector on 9th June 1945 was presented before the suit for redemption had become barred by time. Mr. Mital, who appears for the defendants, contends that as the mortgagors had a right to redeem property on the first day of Jeth (that is on 27th May 1885) the right to redeem the property must be deemed to have accrued on that date and consequently that the application which was presented to the Assistant Collector on 9th June 1945 having been made after the expiry of a period of sixty years was clearly barred by time. Mr. Shamair Chand, on the other hand, contends that the right to redeem did not accrue on the first day of Jeth but that this right was available to the mortgagor throughout the month of the Jeth and could be exercised at any time during that month. He accordingly, contends that the application made to the Assistant Collector on 9th June 1945, having been made within a period of sixty years from 26th June 1885, must be deemed to have been made within the period prescribed therefor under the Act of 1913.

5. It is a well-known principle of law that in the absence of a stipulation to the contrary the right to redeem and the right to foreclose are co-extensive. This principle has been accorded statutory recognition by the enactment of Section 60, Transfer of Property Act which declares that at any time after the principal money has become due, the mortgagor has a right on payment or tender of the mortgage money, to redeem the mortgage.

6. In the case of Aft. Bakhtawar Begum v. Hussaini Khanum A.I.R. 1914 P.C. 36, their Lordships of the Privy Council expressed the view that ordinarily and in the absence of 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 that 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 being generally to the advantage of the mortgagor. A similar view was taken in Asharfi Lal v. Zamir Fatima Bibi : AIR1940All29 .

7. Now, what is the exact purport and import of the words employed by the mortgagor in the mortgage-deed of 17th July 1884? This deed does not specify the number of years for which I the mortgage is to be in force, but it empowers the mortgagor to redeem the property at any time in a month of Jeth on payment of the mortgage money. This stipulation was inserted for the benefit of the mortgagor and could obviously be inserted for it was open to the contracting parties by agreement to accelerate or postpone the date of redemption. It was clearly within the power of the mortgagee to authorise the mortgagor to redeem before the mortgagee him-self acquired the right to foreclose. It seems to me, therefore, that the mortgagor was at liberty to repay the money on the first day of Jeth immediately succeeding the date of the agreement and to redeem the mortgage. As the right to recover possession of the property accrued to the mortgagor on 27th May 1885 the latter could present an application to the Assistant Collector at any time before 27th May 1945. He presented it on 9th June 1945 (that is after the expiry of sixty years from the date on which the right to redeem accrued) and the application was thus clearly barred by time.

8. I am supported in this view by the decision of a Single Bench in the case of Bageshari Tewari v. Nandoo Singh reported as : AIR1937All32 . In this case, a certain person had mortgaged a plot of land on 5tfi October 1869 with a stipulation in the mortgage-deed that the mortgagor might redeem the mortgage in the month of Jeth of any year within a period of ten years; but that if the mortgagor failed to redeem within the said period of ten years the mortgagee would become the owner of the property. The mortgagor instituted a suit for redemption more than sixty years after the first Jeth succeeding 5th October 1869, the date of mortgage. Bajpai, J. held that the suit was barred under Article 148, Limitation Act. In the concluding paragraph of the judgment the learned Judge observed as follows:

I have discussed all the cases that were cited before me and I am o the opinion that the force of authority is against the contention of the plaintiffs-appellant and my own view is also that the plaintiff's right to redeem ?and obtain possession accrued some time in June 1870....

9. For these reasons I would accept the appeal, set aside the order of the Courts below and dismiss the plaintiff's suit with costs throughout.


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