Skip to content


Sankaran Parameswaran Namboori Vs. Veeramani Pattar Narayana Pattar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 586 of 1954 (E)
Judge
Reported inAIR1957Ker117
ActsLimitation Act, 1908 - Sections 19 and 28 - Schedule - Article 110; Transfer of Property Act, 1882 - Sections 58 and 59; Registration Act, 1908 - Sections 47
AppellantSankaran Parameswaran Namboori
RespondentVeeramani Pattar Narayana Pattar and ors.
Appellant Advocate V.K.K. Menon,; P. Sreedhara Menon and; V.G. Bhaskaran Na
Respondent Advocate T.S. Venkiteswara Iyer and; C.S. Ananthakrishna Iyer, Advs.
DispositionAppeal dismissed
Cases ReferredRaja of Venkitagiri v. Isakpalli Subbiah
Excerpt:
- - 4. the second line of argument which was unsuccessfully pressed before the lower appellate court and reiterated before us was on the assumption that ext......that usufructuary mortgage is really a combination of a mortgage and a lease and the loss of the right of redemption would not, in that view, affect the plaintiffs right to recover the arrears of michavarom, which virtually arose out of the lease involved in the mortgage document. but this argument forgets that there is but one transaction of mortgage. the right of redemption is based on the substantial right of ownership of the mortgagor in the mortgage property. if by the operation of the law of limitation the right of redemption is lost, that would inevitably extinguish also the mortgagor's ownership over the mortgaged property. see narayanaru v. narayanan, 31 trav lj 1111 (f). see further raja of venkitagiri v. isakpalli subbiah, ilr 26 mad 410 at 417 (g), where it was held that in.....
Judgment:

Vardaraja Iyengar, J.

1. This appeal is by the plaintiff in a suit for redemption of a usufructuary mortgage which was allowed by the trial court hut dismissed by the lower appellate court in appeal by the defendants 1 and 5.

2. The plaint whole property appertained to the plaintiff's Illom and was mortgaged with possession under Ext. A dated 24-9-1061 in favour of Veeramony Pattar, deceased. Veeramony Pattar left three sons Narayana Pattar, the 1st defendant, Subramonia Iyer, the ancestor of defendants 2 to 4 and Krishna Iyer, deceased, who partitioned the property among themselves as if it belonged to them absolutely in jcnm and took 1/3 each. This was in 1074 and. 1077. Subsequently Krishna Iyer accepted Ext. B mortgage of 1097 from the mortgagor Illom with reference to his 1/3 interest and we are accordingly not concerned with it. Defendants 2 to 4 in their capacity as heirs of Subramonia Iyer conveyed a portion of their 1/3 interest in favour of the 5th defendant'under Ext. III transfer deed of 1110, and retained in their own hands, the balance left. Neither the 1st defendant nor the defendants 2 to 5 were willing to acknowledge the Illom's title or take fresh mortgage in respect of their respective 1/3 shares. So this suit was laid on 17-1-1122 for redemption of the 2/3d mortgage interest in their hands. Soon after suit, however, defendants 2 to 4 attorned to the mortgagor Illom as regards their balance and took Ext. E mortgage of 1122. The suit was thereafter confined to the defendants 1 and 5 and the redemption of their portion of the property. These defendants 1 and 5 opposed redemption 'mainly on two grounds viz., that the mortgage holding did not belong to the plaintiff's Illom but was the absolute property of their predecessor-in-interest Veeramony Pattar and was so being held by them. They denied that Ext. A mortgage deed was ever accepted by Veeramony Pattar or had come into effect and this notwithstanding the admissions of their co-sharers. They set up the further plea that the suit was in any event barred by limitation and adverse possession. Both the courts below found in favour of title of the plaintiffs Illom and the validity and binding nature of Ext. A mortgage. But while the trial Court found the issue as to bar of Limitation in favour of the plaintiff's Illom, and so allowed the suit, the lower appellate court found to the contrary, and dismissed the suit. Hence this second appeal by the plaintiff, as abovesaid and the main question with which we are concerned, is that of limitation.

3. Now, reckoning the period of limitation of 60 years under the applicable Article 137 of the Cochin Limitation Act, XII of 1112, from 24-9-1061, the date of Ext. A mortgage, there can be no doubt that this suit filed on 17-1-1122 is beyond time. The plaintiff, therefore, averred in the plaint that the cause of action for the suit arose also on 16-1-1082 viz., the date of registration of the mortgage deed and further that the date of expiry of 60 years therefrom viz., 16-1-1122 being a. Sunday ought to be excluded in computing the limitation. This aspect as to date of the registration forming the terminus a quo was sought to be supported in two different ways before the courts below and in both ways before me. The first and indeed that which found support with the trial court was put this way. The mortgagor's admission of execution before the registering authority, gave a fresh starting point of limitation, as from the date of registration for a suit by the mortgagee for foreclosure or sale. Foreclosure or sale and redemption were correlative rights. So the mortgagor must also have in turn, the benefit of that same starting point even so far as his redemptionsuit was concerned. The argument besides being accepted by the learned Munsiff was stretched a bit further by him. For, he was willing to hold that the grant of Ext. B fresh mortgage in 1097, regarding 1/3 of the property in favour of Krishna Iyer by the mortgagor, would constitute a still later admission and therefore another starting point for purpose of this suit. This line of argument was however given up before the lower appellate court and in my opinion quite properly. For, on principle a person cannot be allowed to have an extended time for enforcement of his rights as against another merely on the strength of his own acknowledgment of liability in respect of correlative right which might give an extended time to that other. The question arose before the Privy Council in Mahammad Akbar Khan v. Mt. Motai, AIR 1948 PC 36 (A) in connection with the operation, of Section 20(i) of the Limitation Act (1908), under which the payment of interest on a debt or legacy or of the receipt of the rent or produce of the land by a mortgagee in possession gave fresh period of limitation. The argument was that the mortgaged contract was one, that the rights of mortgagor and mortgagee were reciprocal and correlative, and that the Legislature in extending the time within which the mortgagee may sue for his debt must have intended at the same time to extend the period in which the mortgagor can redeem the property, since it would be anomalous to leave the right of the mortgagee to recover his debt alive, after his obligation to be redeemed is dead. Sir John Beaumont, delivering the judgment of the Board, referred first to Anwar Hussain v. Lehmir Khan, ILR 26 All 167 (B), Bhagwan Ganpati v. Madhav Shankar, ILR 46 Bom 1000: (AIR 1922 Bom 356) (C) and Piroze Khan v. Kanhaiya Ram, AIR 1924 Lah 484 (D), which had rejected this argument and then continued:

'In their Lordships' opinion these cases were rightly decided. The wording of Section 20 is clear and to extract from it an extension of the time for redemption would involve reading into the section something which is not there, and this could only be justified if it appeared to be necessary in order to give effect to the intention of the legislature to be ascertained from the Act as a whole. The construction suggested would involve that there was in effect no time limit for the redemption of a usufructuary mortgage, and this is not an intention which , can be readily imputed to the Legislature'. .

It is clear, therefore, that there is no substance in this argument depending on reciprocity of the rights of mortgagor and mortgagee.

4. The second line of argument which was unsuccessfully pressed before the lower appellate court and reiterated before us was on the assumption that Ext. A, as a deed of mortgage, became effective only on 17-1-1082 the date of its registration when alone, according to learned counsel, the document and the amount secured thereunder must have changed hands. But there is absolutely no warrant for this assumption, whether in the pleadings or in the evidence. Even the wording of Ext. A does not suppport this contention. Reference may be made in this connection to Raghunath Bhagat v. Amir Baksh,AIR 1922 Pat 299 (2)(E), where in spite of the finding that the mortgage consideration was paid only some few days after the registration of the mortgage which itself was later than the date ofexecution, it was held that if there was nothing in the mortgage deed to suggest that the mortgage was not to become effective until the consideration money was paid, the mortgage deed became operative as from the date of execution of the mortgage. For as the learned Judges said:

'The argument that the mortgage does not become effective until the money is actually paid loses sight of the fact that mortgage is a conveyance and not a contract'.

It follows that there is no substance in this line of argument seeking to postpone the effectiveness of the mortgage, either.

5. Finally learned counsel, for the appellant contended that even assuming that the right to redeem the mortgage had become barred by limitation the mortgagor Illom could be allowed to enforce the right to michavarom of 4 Puthen per year reserved to them under Ext. A. The argument is that usufructuary mortgage is really a combination of a mortgage and a lease and the loss of the right of redemption would not, in that view, affect the plaintiffs right to recover the arrears of michavarom, which virtually arose out of the lease involved in the mortgage document. But this argument forgets that there is but one transaction of mortgage. The right of redemption is based on the substantial right of ownership of the mortgagor in the mortgage property. If by the operation of the law of limitation the right of redemption is lost, that would inevitably extinguish also the mortgagor's ownership over the mortgaged property. See Narayanaru v. Narayanan, 31 Trav LJ 1111 (F). See further Raja of Venkitagiri v. Isakpalli Subbiah, ILR 26 Mad 410 at 417 (G), where it was held that in cases in which, by the operation of the law of limitation, the right of the true owner of the property is, at the determination of the period of limitation extinguished, such extinguishment takes effect retrospectively and the consequence, therefore, is that the true owner cannot maintain a suit for the recovery of any rent and profits derived by the trespasser from the land before the extinguishment of the right, though such profits may be due for a period of 3 years before the date of the suit.

6. There is, therefore, no substance in this second appeal and it is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //