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M. Ramanatha Pillai Vs. K.V. Annamalai Chettiar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 487 of 1960
Judge
Reported inAIR1963Mad342; (1963)1MLJ263
ActsTransfer of Property Act, 1882 - Sections 68 and 68(1); Limitation Act, 1908 - Schedule - Article 132
AppellantM. Ramanatha Pillai
RespondentK.V. Annamalai Chettiar and anr.
Appellant AdvocateM. Natesan, Adv.
Respondent AdvocateK.S. Desikan and ;K. Raman, Advs.
DispositionAppeal dismissed
Cases ReferredIn Rajendra Bahadur v. Raghubir Singh.
Excerpt:
.....only after principal amount become due according to terms of contract contained in mortgage deed - mortgagor could not be given earlier right for redemption unless mortgagee chooses to file suit for recovery of mortgage money under section 68 (1) (d) - held, suit not barred by limitation since mortgagor entitled to wait for period of 12 years after date fixed for payment in mortgage deed before filing suit on personal covenant for recovery of mortgage money. - - the questionwhich arose for consideration of the full benchwas whether the usufructuary mortgagee was notentitled to sue for sale of the mortgaged propertywhen the mortgagor failed to deliver possessionof the property to the mortgagee and consequently whether he was bound to sue for the moneyalone. the purchaser not..........arises was laid by the first respondent as plaintiff for recovery of rs. 365 due under an othi deed, dated 28th july 1943. this was executed by the appellant both on his own behalf and as guardian of his elder brother's sons, defendants 2 and 3, who were minors on the date of the othi deed. the sum claimed consisted of rs. 200 principal and interest at 51/2 per cent, per annum from the date of the mortgage deed. contentions were raised as regards the validity and binding character of the mortgage in regard to the share of defendants 2 and 3 and also on the question of the mortgage being a real transaction. i am not concerned with these questions in this appeal. but, a question of limitation was raised on the ground that since the mortgagee was entitled to possession of the mortgaged.....
Judgment:

Ganapatia Pillai, J.

1. The first defendant is the appellant. The suit out of which this appeal arises was laid by the first respondent as plaintiff for recovery of Rs. 365 due under an othi deed, dated 28th July 1943. This was executed by the appellant both on his own behalf and as guardian of his elder brother's sons, defendants 2 and 3, who were minors on the date of the othi deed. The sum claimed consisted of Rs. 200 principal and interest at 51/2 per cent, per annum from the date of the mortgage deed. Contentions were raised as regards the validity and binding character of the mortgage in regard to the share of defendants 2 and 3 and also on the question of the mortgage being a real transaction. I am not concerned with these questions in this appeal. But, a question of limitation was raised on the ground that since the mortgagee was entitled to possession of the mortgaged property and such possession was not delivered the suit ought to have been filed within twelve years from the date of the mortgage deed and not within twelve years from the date of the expiry of the three years period fixed in the mortgage deed for repayment of the mortgage amount. Both the lower Courts have negatived this contention. That is the only point arising for my consideration now.

2. The facts are not in dispute. The date of the mortgage deed, Ex. A.1, is 28th July 1943. The period fixed for repayment in the mortgage deed is three years. It was alleged that the mortgaged property was leased back to the mortgagor on the basis of a tenancy from year to year. But, at the end of the first year no rent was paid, nor possession of the property surrendered. Both the lower Courts proceeded on the assumption that this lease was not given effect to and consequently the mortgagee was not given possession of the property. The suit was filed on 29th July 1958. It would therefore be within time under Article 132 of the Limitation Act if the starting point for limitation was the end of three year period fixed in the mortgage deed for repayment of the mortgage money. But it would be barred by time if the mortgagee had exercised option under Section 68(1)(d) of the Transfer of Property Act and brought the suit for the money due on the mortgage since possession was not given to him.

3. Mr. Natesan, learned counsel for the appellant, raised two points.

The first was that the provisions of Section 68(1)(d) of the Transfer of Property Act (hereinafter called the Act) cast an obligation upon the mortgagee in this case to file a suit for the mortgage money within twelve years from the date of default of the mortgagor to give possession and consequently; the suit would be barred by limitation.

The second contention was that even if this provision in the Act is regarded as a provision for the benefit of the mortgagee upon which she could base her cause of action as an alternative to the cause of action based upon the covenant in the mortgage deed for repayment of the mortgage money, still the original mortgagee in this case had exercised the option to avail herself of the remedy provided under Section 68(1)(d) of the Act by the notice Ex. A.7, issued on 15th September 1944 and consequently she was not entitled to rely on the personal covenant to bring a suit within twelve years from the end of the three year period fixed in the mortgage deed for payment. If this argument is correct and an election was made by the mortgagee on 15th September 1944, the date of Ex. A. 7, the suit would be barred by farobecause it was admittedly filed more than three years after the date of Ex. A. 7. The first respondent who filed the suit was an assignee of the mortgage from the mortgagee, but that fact does not enter into the merits of the question which I have to decide.

4. Article 132 of the Limitation Act provides a twelve year period of limitation for suits to enforce payment of money charged on immoveable property. This period of twelve years begins to run from the date when the money used for becomes due. According to counsel for the appellant the money sued for became due under the personal covenant in the mortgage deed on the expiry of the three year period and alternatively it also became due under Section 68(1)(d) of the Transfer of Property Act when the mortgagee (sic) defaulted to give possession of the mortgaged property to the mortgagor (sic).

The argument was that the mortgagee cannot have two causes of action for the same claim and where the statute gave a right to sue for money, it must prevail over the right contained in the contract. This argument proceeds on the misconception that there are two separate causes of action in this case for the same right or relief, viz., recovery of money due under the mortgage. The nature of the right conferred under Section 68(1)(d) if analysed would turn out to be nothing but compensation to the mortgagee for the default of the mortgagor to surrender possession of the mortgaged property. A statutory right is given to the mortgagee to claim the mortgage amount in cases falling under Section 68(1)(d) of the Act which is only in the nature of compensation to the mortgagee and not an alternative remedy for recovery of the mortgage money based on the right founded upon the personal covenant contained in the mortgage deed to repay the mortgage money. It is true the amount recoverable by the mortgagee under Section 68(1)(d) is identical in quantity with the mortgage money mentioned in the mortgage deed. But, that would not affect the nature of the claim dealt with in the statutory provision. Consequently, merely because the amounts sued for in either case would be the same it could not be said that the cause of action is the same though satisfaction for one cause of action would extinguish the other.

Really the cause of action under the mortgage deed is based upon contract while the cause of action for the recovery of the amount of the mortgage claim money by virtue of the provisions of Section 68(1)(d) is in the nature of a right to claim compensation.

In cases of usufructuary mortgages containing a personal covenant by the mortgagor to pay the mortgage money and default takes place in giving possession of the mortgaged property there is only one cause of action or recovery of the mortgage money because in such a case Section 68(1)(d) would not be attracted if the suit is laid for the mortgage money after it becomes due according to the tenor of the mortgage deed. There is therefore no force in the contention that in a case where a mortgagee as here has both a cause of action based upon the personal covenant in the mortgage deed and a right to recover the mortgage money by virtue of the provisions of Section 68(1)(d) of the Act, he gets two causes of action for the same claim.

In my view, there are two causes of action no doubt, but they are not for same claim. The object with which Section 68 was enacted would sup-port my view because the right to sue for the mortgage money was conferred upon a usufructuary mortgagee who would normally be not entitled to such a right because by the definition of 'usufructuary mortgage' no personal covenant to repay the mortgage amount is involved in that class of mortgages. Thus Section 68 was, really intended by the Legislature to confer upon a usufructuary mortgagee a right to sue for the mortgage money if he otherwise would not have had that right. To construe Section 68 in the manner contended for by Mr. Natesan, would mean that the legislature compelled a mortgagee who had a right to sue for the mortgage money by reason of the personal covenant in the mortgage deed to abandon that right and to rest in his claim solely upon Clause (d) of Section 68(1). The object of that provision was to confer a right which did not already exist in the mortgagee and not to take away any right which he already possessed by reason of the contract.

5. The nature of the right conferred by Section 68(1)(d) has been the subject of judicial pronouncements in many High Courts. It may be really not necessary to traverse the entire field of case law on the subject because the preponderance of judicial opinion is that this is in the nature of a privilege given to the mortgagee which he was free to reject in suitable cases. This implies that this privilege of suing for the mortgage money conferred by Section 68(1)(d) could not be converted into an obligation when alone Mr. Natesan's. contention could prevail.

6. Mr. Natesan attempted to show that in interpreting the language of Article 132 of the Limitation Act regarding the point when the period of limitation starts, the term 'when the money sued for becomes due' should be held equivalent to 'when the money becomes payable'. The term 'when the bill, note or bond becomes payable' in Article 80 of the Limitation Act, has come up for consideration in many' decisions, but it will serve no useful purpose to review them as the principles laid down in those decisions cannot apply to Article 132. However, certain observations occurring in the Full Bench decision in Subbamma v. Narayya, ILR 41 Mad 259 : AIR 1919 Mad 1164 were relied on by Mr. Natesan in this connection.

7. There a suit was brought for sale of usu-fructuarily mortgaged property on the allegation:that the defendant, viz., the mortgagor did notgive possession to the mortgagee. The questionwhich arose for consideration of the Full Benchwas whether the usufructuary mortgagee was notentitled to sue for sale of the mortgaged propertywhen the mortgagor failed to deliver possessionof the property to the mortgagee and consequently whether he was bound to sue for the moneyalone. The Full Bench held that when under ausufructuary mortgage possession was not given itceased to be a usufructuary mortgage and thepower of bringing the property to sale on failureto pay the mortgage money could not be exercisedby him under the contract but he was entitled tosue for the money under Section 68 of the Act. Insetting out this conclusion Wallis C. J. madethe following observations :

'A mortgagee to whom possession has not been given is not a usufructuary mortgagee. Consequently he does not come within the proviso and is entitled to sue for foreclosure or sale under the section (Section 69), in the absence of a contract to the contrary, 'at any time after the mortgage money has become payable to him,' Section 68 entitles the mortgagee to sue the mortgagor for the mortgage money 'where the mortgagee being entitled to possession of the property,, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any other person. The first of these events having happened, the mortgagee has become entitled to sue for the mortgage money, or in other words, the mortgage money has become payable to him, and he is entitled under Section 67 to sue for foreclosure or sale, in the absence of a contract to the contrary which cannot be implied'.

8. The Full Bench concluded that once the mortgage money became payable under any clause in Section 68 there could be no reason for refusing to give effect to Section 67 which allows a suit for foreclosure or sale at any time after the mortgage money has become payable.

9. It is true the learned Judges constituting the Full Bench considered that the right of a mortgagee to enforce a payment of the mortgage money under Section 68 carried with it the right to sue for foreclosure for sale. In describing this right, the learned Judges have mentioned that in a case falling under Section 68, the mortgage money becomes payable to the mortgagee. But the question for their determination was not whether by thus becoming payable the mortgagee loses the benefit of the personal covenant contained in the mortgage. They were not concerned with that question in the case before them as that was a case of usufructuary mortgage, pure and simple, containing no personal covenant for payment. The observations in question cannot therefore be relied upon as an authority upon Article 132 for construing the term 'When the money sued for becomes due.' The contention of Mr. Natesan that these observations would imply that in a case covered by Section 68(1)(d) the mortgage money becomes payable not only for the purpose of conferring the right to bring a suit for foreclosure or sale but also for the purpose of limitation cannot therefore be accepted as correct.

10. Learned counsel then referred to the decision in Gangaram v. Raghubans, ILR 27 Pat 898, in support of his argument. There the question was when the unpaid purchase money under a sale became due. Section 55(5)(b) of the Act provides for the liability of the purchaser to pay or tender, at the time and place of completing the sale, the purchase money to the seller or such person as be directs.

The facts in that case were : out of the consideration for the sale a portion was paid in cash and the balance was left with the purchaser to be paid to the mortgagee holding mortgages over the property sold. There was no indication in the sale deeds as to when the purchaser was bound, to pay the amount due to the mortgagee. The purchaser not having paid the amount reserved with him for payment to the mortgagee, he obtained a decree for recovery of the mortgage money due and the seller satisfied this decree by payment. Thereafter a suit was brought by him enforce the statutory charge for recovery of the balance of purchase money due and the question arose when that amount became due under the Article 132 of the Limitation Act.

The Bench held that in the absence of a contract to the contrary between the parties, the direction to the buyer to pay the price to the seller or to a third party was not , a contract inconsistentwith the existence or continuance of the statutory charge under Section 55(5)(b) and since there was nothing to indicate that the seller had agreed to postpone payment of the unpaid purchase money to a future date, that amount was payable to the seller or to the third party indicated in the deed of sale on the date of the sale itself and the statutory charge could be enforced within 12 years from the date of the sale as the money became due on the date of the sale itself. Mr. Natesan contends that ore the analogy of this decision it should be held that the money claimed in this litigation became due under Article 132 of the Limitation Act on the date when the right under Section 68(1)(d) arose.

11. A statutory charge differs from the right to compensation provided under Section 68(1)(d) of the Act, because I think it does not create a new cause of action, but only provides a new remedy for an existing cause of action. A right to recover unpaid purchase money under Section 55(5)(b) of the Act is based upon the covenant in the sale deed to pay the purchase money. That covenant could be enforced in more than one way according to the terms of the contract. The statute, however, provides that in the absence of a contract to the contrary, the seller would be entitled to a charge for the unpaid purchase money upon the property sold. This does not mean that a new cause of action is given to the seller under this statutory charge for claiming the amount due as unpaid purchase money.

12. In another view also this decision can be distinguished because there the money in the hands of the purchaser remained the money of the vendor and the purchaser was only an agent of the vendor with a direction to pay it to a particular individual. The fact that the agent did not carry out the direction of the principal would make no difference in the character of the claim made by the principal for the recovery of the money left in the hands of the purchaser. The cause of action for the recovery of that money was the original cause of action, viz., that contained in the contract for sale. This decision would therefore have no application here.

13. Mr. Natesan also referred to the Privy Council decision in L. Narsingh Partab Bahadur Singh v. Mohammed Yaqub Khan, ILR 4 Luck 363 : AIR 1929 PC 139 where the question was whether in the case of a combination of a simple mortgage and a usufructuary mortgage the mortgagee could claim the rights conferred under S. 67 of the Act to bring the property to sale for nonpayment of the mortgage amount. The controversy before the Privy Council was whether the mortgage in question fell under the classification anomalous mortgage and therefore was hit by the provisions of Section 98. The conclusion that the mortgage deed in that case attracted Section 68 has no relevance to the question which I have to decide here.

14. Mr. Natesan then referred to the decision in Lasa Din v. Mt. Gulab Kunwar , and the decisions which followed it. But, in my opinion, these decisions have no bearing on the question I have to decide because they were concerned with the provisions in the mortgage deeds and other debt documents giving the right to the mortgagor to pay the amount of the mortgage money in instalments and providing that on default of payment of any one instalment the entire mortgage money would become due.

15. The question of limitation now raised has been considered by a Bench of the BombayHigh Court in Sidramaya v. Danava, : AIR1954Bom407 . There the nature of the right conferred upon a mortgagee under Section 68(1)(d) was analysed in all its bearings and it was held that it did not amount to an obligation but only amounted to a concession to the mortgagee. It was further held there that if the mortgagee was entitled to enforce payment of the mortgage money both by reason of the personal covenant contained in the mortgage deed and also by reason of the provision in Section 68(1)(d), it was open to him to wait till the expiry of the period fixed for payment in the mortgage deed and to bring a suit within 12 years after the expiry of that period despite the accruing of the right to sue for the mortgage money earlier under Section 68(1)(d). I am in respectful agreement with the view expressed by the Bench on this question. It is unnecessary for me to notice at length the grounds for the conclusion mentioned by the learned Judges constituting the Bench because I have already indicated in this judgment the principal grounds which have been relied on in that judgment.

16. There is one other point which I would like to mention as supporting my View, viz., that the mortgagee in this case not bound to sue for recovery of the money within 12 years from the date when the mortgagor failed to deliver possession. A right to redeem the mortgage is a statutory right and it arises under Section 60 of the Act after the principal money secured by the mortgage 'has become due'. This section was amended in 1929 and the phrase 'after the principal money has become payable' was altered and the phrase introduced by the Amending Act was 'after the principal money has become due'. This alteration, in one sense, supports my view that what was intended by Article 132 when it used the expression 'when the money sued for becomes due' was the point of time indicated by the contract between the parties as the date fixed for repayment and not the point of time indicated by Section 68(1)(d). If the mortgagor has a right to redeem the mortgage only after the principal amount has become due according to the terms of the contract contained in the mortgage deed, it stands to reason that the mortgagor could not be given an earlier right for redemption unless the mortgagee chooses to file a suit for recovery of the mortgage money under Section 68(1)(d).

Supposing in a case where a mortgagee is entitled to sue for the mortgage money both on the personal covenant contained in the mortgage deed and under Section 68(1)(d) and, further supposing that the mortgagee does not choose to sue for the mortgage, money under Section 68(1)(d), but waits for the expiry of the period for repayment fixed in the mortgage deed, could it be said that a right of redemption is conferred upon the mortgagor even before the time fixed for payment arrives merely on the ground that under Section 68(1)(d) a right to sue for the mortgage money had already accrued to the mortgagee. Of course, if a suit for recovery of the mortgage money is actually brought by reason of Section 68(1)(d) even before the expiry of the period fixed in the mortgage document for payment of the mortgage amount, the Court is bound to give the option to the mortgagor to pay the amount and redeem the mortgage before ordering sale of the mortgaged property. Thus a right of redemption is given to the mortgagor in such a case only if and when the mortgagee exercises the right to sue for the money under Section 68(1)(d) before the date fixed for payment. In no other case could a mortgagor claim the right of redemption before the date fixed for payment under the mortgage deed.To take any other view would lead to the anomaly that by his own default the mortgagor would hasten the time when he could redeem the mortgage. This would be nullifying the intention of the parties to the contract when they had fixed a period for, re-payment which carries the implication that before the expiry of that period the mortgagor could not exercise the right of redemption. I therefore agree with both the lower Courts that the suit in this case was not barred by limitation since the mortgagor (sic) was entitled to wait for a period of 12 years after the date fixed for payment in the mortgage deed before filing the suit on the personal covenant for recovery of the mortgage money.

17. The next contention of Mr. Natesan based upon Ex. A.7 amounts to this that a notice issued by the mortgagee containing a demand for payment, of the mortgage money basing the claim upon Section 68(1)(d) would amount to an irrevocable election to choose the statutory cause of action implying an abandonment of the cause of action based upon the personal covenant in the deed.

18. In Rajendra Bahadur v. Raghubir Singh. , it was held by a Bench of the Oudh Chief Court that the occurring of default in payment of the interest due under the mortgage deed which was made payable at stipulated periods even before the date fixed for the repayment of the principal gave an option to the mortgagee to sue for the entire mortgage money together with interest and a suit laid after issuing of notice to the mortgagor calling upon him to pay the entire amount was not premature.

In taking this view the Bench followed the Privy Council decision in , where it was observed that in such a case as soon as the mortgagor defaulted in paying the interest due under the mortgage, the mortgage money became payable within the meaning of Article 132 of the Limitation Act provided the option had been exercised by the mortgagee to enforce the mortgage.

19. I am unable to see how this decision has any bearing on the question whether an option is exercised by the mortgagee. The mere issue of a notice to the mortgagor, to pay the mortgage money on the happening of the contingency contemplated under Section 68(1)(d) does not amount to an unequivocal act or election to abandon the remedy based upon the cause of action contained in the deed in preference to the remedy provided under Section 68(1)(d).

20. Mr. Natesan next referred to the fact that interest was claimed in the plaint from the date of the mortgage deed and not from the date of notice Ex. A.7. I do not see how this has any bearing on the question as to the starting point for the period of limitation though the right to claim interest from the date of the mortgage, may be doubted.

21. In my view a real election would arise in the case of a mortgagee electing to sue for the mortgage money under the provisions of Section 68(1)(d) of the Act only as between two remedies, viz., suing for recovery of possession of the mortgaged property and suit for recovery of the mortgage money. In electing for the one and not for the other it could be well said that the mortgagee in such a case had abandoned the other remedy. But, there is really no option or election in a case like the present where the right to sue for the mortgage money is already secured by the mortgage deed. An election involves the principle that one has to choose between two inconsistent rights of remedies. There could therefore be no election in any legal sense in the case of a mortgagee entitled to sue for the mortgage money both by reason of covenant in the contract and the provisions of Section 68(1)(d) who chooses to enforce the covenant and not the statutory right for getting payment. I therefore overrule this contention also.

22. In the result, the second appeal fails and is dismissed with costs.

23. No leave.


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