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Mukkanni Vs. Manan Bhatta and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtChennai
Decided On
Judge
Reported in(1882)ILR5Mad182
AppellantMukkanni
RespondentManan Bhatta and ors.
Excerpt:
limitation - redemption of mortgage--acknowledgment made 'in the meantime'--act xiv, 1859, section 1, clause 15. - .....the appeal with costs.1 act not to apply to suits now pending or to suits instituted within two years.suits afterwards instituted to be governed by this act.[section 18 : all suits that may be now pending or that shall be instituted within the period of two years from the date of the passing of this act shall be tried and determined as if this act had not been passed; but all the suits to which the provisions of this act are applicable that shall be instituted after the expiration of the said period shall be governed by this act and no other law of limitation, any statute, act, or regulation now in force notwithstanding.]2 [article 148:________________________________________________________________________________ description of suit. period of limitation. time when period begins to.....
Judgment:

Charles A. Turner, Kt., C.J.

1. This was a suit to redeem a kanam held by the first defendant. It was alleged that defendants 2-5 held under the first defendant. The property in suit originally belonged to Chungath Achan. In the year 1761 he mortgaged the land in suit to one Venkateswara Bhatta (exhibit III,). In 1784-85 Venkateswara Bhatta assigned it to one Kuppan Bhatta (exhibit IV). In 1839 Kuppan Bhatta's heir assigned the mortgage to Murukkan Nayar, and in this the mortgagee acknowledged Chungath Achan's right of redemption (exhibit V.) In 1847 there was another arrangement in favour of Venkateswara Bhatta (exhibit VI). The plaintiff averred that there was a renewal in 1863, and that the counterpart was destroyed by fire; but both the Lower Courts found that this averment was not proved. They further found that the plaintiff was the representative of Chungath house by Attalatakamor reversionary right. The assignment of 1784 contained no acknowledgment of the mortgagor's right of redemption, but that of 1839 contained a distinct acknowledgment. Prior to 1859 there was no limitation of time for the institution of suits to redeem mortgages. The provisions of Clause 15, Section 1, Act XIV of 1859, prescribed sixty years unless there was an acknowledgment in the meantime, i.e., within sixty years from the date of the mortgage. Section 181 allowed two years for parties who relied on the old rule of limitation to institute their suits. From 1862, then, Act XIV of 1859 was in force, and if this suit had been instituted between 1862 and 1871 it would have been unquestionably barred. Article 1482 of Schedule II, Act IX of 1871 provides that the acknowledgment should be within the period of limitation prescribed.

2. The language of the present Act is substantially the same.

3. We are of opinion that the right to sue to redeem the mortgage of 1761 became barred in 1862. Neither Act IX of 1871 nor Act XV of 1877 was designed to revive any right which had previously become extinct: moreover the term 'the period prescribed' used in those Acts refers to the period prescribed by the Act which governs the suit and not the period prescribed by the law in force at the date of the acknowledgment.

4. We affirm the decree of the Subordinate Judge and dismiss the appeal with costs.

1 Act not to apply to suits now pending or to suits instituted within two years.

Suits afterwards instituted to be governed by this Act.

[Section 18 : All suits that may be now pending or that shall be instituted within the period of two years from the date of the passing of this Act shall be tried and determined as if this Act had not been passed; but all the suits to which the provisions of this Act are applicable that shall be instituted after the expiration of the said period shall be governed by this Act and no other law of limitation, any Statute, Act, or Regulation now in force notwithstanding.]

2 [Article 148:

________________________________________________________________________________

Description of suit. Period of limitation. Time when period begins to run.

________________________________________________________________________________

Against a mortgagee to Sixty years. The date of the mortgage, unless

recover possession of where an acknowledgment of the

immoveable property title of the mortgagor or of his

mortgaged. right of redemption has, before

the expiration of the prescribed period, been made in writing signed by the mortgagee or some person claiming under him, and, in such case, the date of the acknowledgment.

Provided that all claims to redeem arising under instruments of mortgage of immoveable property situate in British Burmah, which have been executed before the first day of May 1863, shall be governed by the rules of limitation in force in that Province immediately before) the same day.]


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