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Shambhu Dayal Vs. Tarawanti and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 867 of 1975
Judge
Reported inAIR1985P& H21
AppellantShambhu Dayal
RespondentTarawanti and ors.
Appellant Advocate M.S. Jain, Adv.
Respondent Advocate Arun Jain and; Kamaljit Bakshi, Advs.
Cases ReferredBakhtawar Begam v. Husaini Khanam
Excerpt:
.....of the present case are on a better footing because here the mortgagor had to incur an additional burden of rs. the limitation in the present case, therefore, commenced only after the expiry of the period of 10 years fixed in the agreement and as such the suit filed in the year 1970 was well within time......possession or power relating to the mortgage property and shall if so require retransfer the property to the plaintiff at his cost free from mortgage and all encumbrances created by the respondent or any person claiming under him and shall also put the plaintiff in possession of the suit property. it is further ordered that in case the appellant fails to make payment within the period fixed, this appeal shall stand dismissed. in view of the complicated question involved in the appeal, the parties are left to bear their own costs.4. appeal allowed.
Judgment:

1. In this second appeal against the judgment and decree of the learned Additional District Judge, Ambala, the sole and the vital point which needs determination is as to whether the suit for redemption is barred by time.

2. For the determination of the said question, it is not necessary to refer in detail to the pleadings of the parties and suffice it would to notice only the following facts which are necessary for that purpose. The property in dispute was mortgaged by the predecessor-in-interest of the appellant with the predecessor-in-interest of respondent 1 for consideration of Rs. 900/- through mortgage deed. Exhibit P-2 dated Dec. 18, 1905. This suit for its redemption was filed on Dec. 22, 1970, after the expiry of 60 years, that is, the period of limitation prescribed. The suit was, however, claimed to be within limitation on the basis of condition No. 6 of the mortgage deed which reads as under:-

'Sharat Fakul Rehan Ba Had Miad Das Sall Ke Karar Pai Hai. Zan Kul Zar Patta. Zar Hahan Wa Laggay Wa Sood Ke Yakmusht Muratahanan Ko De Denga. Dukan Marhuna Fakul Rehan Kar Denge Agar Aroon Miyad Murkarah Gujast Karenga Twoo Bajai Mubligh 900/- Ke Mubligh 990/- Zar Rehan Wa Sood Was Laagat Ke Jo Wajib Talab Hoga? Dendar Honge'.

Both the Courts below have taken the view that it was open to the mortgagor to redeem the property at any time after the date of the mortgage on payment of the mortgage amount together with another Rs. 90/- the right to redeem commenced from the date of the mortgage itself. This view, however, cannot be sustained in law. The said clause was only an enabling provision meant for the benefit of the mortgagor. It was open to him to redeem the property within a period of ten years if he had so desire on payment of additional amount of Rs. 90/-. In case he did not exercise that option the condition of the bar of redemption for 10 years was in full operation and the right to redeem was to accrue to the mortgagor only after the expiry of 10 years. Though there is no direct authority covering the present situation but some observations of the Privy Council in Bakhtawar Begam v. Husaini Khanam, ILR 36 All 195: (AIR 1914 PC 36) fully support my view. In that case, the mortgagor executed a mortgage by way of conditional sale in respect of 12 villages. A contemporaneous agreement was made by the mortgagee with the mortgagor that the latter may at any time within a period of 9 years claim back the property on payment of the amount of consideration. Allahabad High Court while interpreting this clause held that the debt remained outstanding for a period of 9 years and the right to redeem only accrued at the expiry of that period. The suit was consequently held to be within limitation. The judgment of the High Court holding the suit to be within limitation was reversed on another consideration but so far as the interpretation of the said clause was concerned, their Lordships of the Privy Council observed thus:--

'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. In the present case, had the matter depended only on the construction of the contract as given in the proceeding of the Collector, much might be said in support of High Court's conclusions'.

From the above observation, it is apparent that the construction put by the High Court on the contemporaneous agreement and its finding that the right to redeem accrued after the period of 9 years was approved by the Privy Council. The facts of the present case are on a better footing because here the mortgagor had to incur an additional burden of Rs. 90/- if he wanted to exercise his option of redemption within 10 years and in case he did not exercise that option, he was not entitled to redeem the property before the expiry of ten years. The limitation in the present case, therefore, commenced only after the expiry of the period of 10 years fixed in the agreement and as such the suit filed in the year 1970 was well within time.

3. For the reasons recorded above, this appeal is allowed the impugned judgment and decree set aside and a preliminary decree for redemption passed in favour of the appellant to the effect that if he pays in the Court the amount of Rs. 900/- on or before Dec. 31, 1983, the Repsondent shall deliver to the plaintiff or to such person as the plaintiff appoints all documents in possession or power relating to the mortgage property and shall if so require retransfer the property to the plaintiff at his cost free from mortgage and all encumbrances created by the respondent or any person claiming under him and shall also put the plaintiff in possession of the suit property. It is further ordered that in case the appellant fails to make payment within the period fixed, this appeal shall stand dismissed. In view of the complicated question involved in the appeal, the parties are left to bear their own costs.

4. Appeal allowed.


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