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Dhanammal Vs. Raju Gramani (Died) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1979 of 1948
Judge
Reported inAIR1954Mad193; (1952)IIMLJ458
ActsTransfer of Property Act, 1882 - Sections 60; Limitation Act, 1908 - Schedule - Article 148
AppellantDhanammal
RespondentRaju Gramani (Died) and ors.
Appellant AdvocateK.P. Ramakrishna Ayyar and ;S.V. Venkatasubramaniam, Advs.
Respondent AdvocateK.S. Desikan and ;K. Raman, Advs.
DispositionAppeal allowed
Cases ReferredLasadin v. Gulab Kwnwar
Excerpt:
.....- right to redemption - section 60 of transfer of property act, 1882 - limitation for enforcing right to redemption - mortgage deed provides that redemption can be enforced only after principal amount becomes due - section 60 also provides for redemption after principal amount becomes due - period of limitation for enforcing redemption starts after principal amount becomes due. - - on a careful reading of the tamil document, i am satisfied that the learned district judge's translation is not correct. prior to the amendment of the act by act 20 of 1929 and act 5 of 1930, the word used was 'payable' instead of 'due'.mitra in his commentaries on the transfer of property act points out by referring to the special committee's proceedings that the change was necessitated by reason of a..........after referring to section 60, transfer of property act prior to the amendment where the right to redeem arose after the principal money had become payable the learned judges observe as follows: 'these provisions of the law point to the conclusion that the right of redemption accrues, when, according to the contract of the parties, the mortgage money has become payable and is paid or tendered or when it is satisfied from rents and profits, when such is the mode of payment indicated by the contract. prior to the date when. act 4 of 1882 came into force it was held in several cases in this presidency that when a day is fixed for the payment of the debt by a contract of mortgage & nothing more appears, the presumption is that the day is fixed for the convenience of the debtor, and.....
Judgment:

Krishnaswami Nayudu, J.

1. The question that arises for determination in this appeal is one of limitation. The appellant is the representative of the mortgagor and Instituted the suit out of which the appeal arises for redemption. The first Court decreed the suit. But in appeal the learned District Judge of Chingleput reversed the decision of the District Munsif and held that the suit was barred by limitation. The usufructuary mortgage deed is dated 21-8-1882 and is in Tamil. That was in renewal of an earlier usufructuary morgage deed which was for a period of three faslis ending with Ani 1885. At the end of the document it is provided that the prescribed time for the mortgage deed runs from the date of the deed till the end of fasli 1295, i.e., 15-7-1885. in the body of the document the mortgagor states that he will redeem the property at the time fixed under the mortgage deed. There is a further clause where he states that if he did not pay the amount according or as per the period fixed as above, the mortgagee would be entitled to sell for a value to be fixed by the mediators. There is no difficulty in holding that under this document a period has been fixed, the period being from the date of the document till 15-7-1885. The learned District Judge on a construction of the document and on a translation of his of the same held that the terms of the document were that the property has to be redeemed 'within the prescribed time' and the right of the mortgagee to sell the property would arise in default of payment 'within the prescribed time'. Relying on the decisions in -- 'Rose Ammal v. Rajarathnammal', 23 Mad 33 CA), -- 'Chinnasami Reddiar v. Krishna Reddi', 16 Mad LJ Me (B), -- 'Chandu Pai v. Koaja Poojari', AIR 1916 Mad 940 (1) CO and -- 'Bhagvantulayya v. Venkamdhora', AIR 1941 Mad 484 (D), he held that the time in the document is expressed to be within or in a certain number of years and that the time fixed thereby should be presumed to be a protection only for the mortgagor-debtor and that the period' of limitation has to be reckoned from the date of the document and not from 15-7-1885, as is contended on behalf of the plaintiff-appellant. On a careful reading of the Tamil document, I am satisfied that the learned District Judge's translation is not correct. in the deed the recital is that the mortgagor will redeem the property on paying the principal and interest. The words used are 'merpadiyanil' which the learned District Judge has translated as 'within the prescribed time'. The words used are not merpadiyanukkul'. The words 'merpadiyanil' would mean 'in or at the said time or prescribed time'. Then again where the mortgagee is empowered to sell the property in default of payment, the words used are 'Merpaditayappadi' which the learned District Judge has translated as within the prescribed time. 'Merpaditayappadi' should be translated 'as per or according' and not 'within'. The conclusions therefore of the learned Judge arrived at on the basis that the mortgagor had an option to redeem or in any event has to redeem within the prescribed time entitling him to institute a suit for redemption at any time on and from the date of the document and he need not have waited till the expiry of the period fixed in the document could not be supported.

2. The right of redemption is provided under Section 60, Transfer of Property Act which entitles the mortgagor to redeem the property at any time after the principal money has become due. Prior to the amendment of the Act by Act 20 of 1929 and Act 5 of 1930, the word used was 'payable' instead of 'due'. Mitra in his Commentaries on the Transfer of Property Act points out by referring to the Special Committee's proceedings that the change was necessitated by reason of a diversity of opinion that existed on the meaning given to the word 'payable' in Section 60, Transfer of Property Act as it was held in some cases that when a day was fixed for the payment of the debt secured by the mortgagee and nothing more was stated, the presumption was that the day was fixed for the convenience of the debtor and that it was open to the mortgagor, if he liked to pay the debt at an earlier date -- 'Bhagwat Das v. Parshad Singh', 10 All 602 (E) and that a contrary view is taken in other cases and the general principle that the rights of redemption and foreclosure are co-extensive was strictly followed --Vadju v. Vadju', 5 Bom 22 (F). In order to set at rest this conflict it was found necessary to substitute the word 'due' for the word 'payable' under the amendment of the Act.

3. The learned counsel for the appellant (respondent?) relied on the case cited by the lower appellate Court in -- 'AIR 1941 Mad 484 (D)', in which the question that arose for decision was whether the tender of an amount in redemption of a mortgage was proper. The stipulation in the mortgage deed was that the mortgagor shall pay all the principal and interest payable under the document by 10-9-1928. The word 'by' was construed by the learned Judges as 'on or before' that date and it was, therefore, held that the mortgagor was entitled to tender the amount at any time prior to the date fixed by 10-9-1928, that it would be a valid tender and it was not open to the mortgagee to refuse to accept it. That decision cannot be of much assistance to the appellant (respondent?) there being no dispute as to the words used which were 'by a certain date' which were construed to be 'on or before that date'.

4. The other decision in -- '23 Mad 33 (A)', where the words which came up 'for construction by Court were 'within the 20th of April 1924' & the learned Judge held 'within' was sufficient to hold that the mortgagor is entitled to redeem at any time before the date fixed. This decision. however, has been held to be not good law be Bench of this Court in -- 'Bir Mohamed Rowther V. Nagoor Rowther', AIR 1915 Mad 425 (1) (G). The learned Judges preferred to follow the Privy Council decision in -- 'Bhaktawar Begum v. Hussaini Khanum', AIR 1914 PC 36 (H), which I shall presently refer to. In that case the terms of the mortgage were that the mortgagee will receive the said principal sum in a term of seven years and surrender the lands. Following the decision of the Privy Council, it was held that the mortgagor cannot be allowed to redeem the mortgage before the expiry of the term mentioned in the mortgage deed, unless there is a contract to the contrary in favour of the mortgagor and that the expression of opinion of the learned Judge in --'23 Mad 33 (A)', was in their opinion, must be held to be overruled.

5. Two other decisions relied upon on behalf of the appellant, namely, -- '16 Mad LJ 146 (B)' and -- 'AIR 1916 Mad 940 (C)', proceeded nn the construction of the particular words in the mortgage deeds under consideration. In these decisions where the word construed being 'within' it was held to mean 'on or before'.

6. in the present case in view of the fact that a period was fixed under the document and the redemption was to be at the said period, it will not be correct to hold that either the mortgagor was required to pay the amount within that period or the mortgagee became entitled to foreclosure, if the mortgage amount was not paid within the period. The word 'within' does not anywhere appear in the mortgage deed in the present case.

7. in -- 'AIR 1914 PC 36 (H)', a decision of the Privy Council which has been accepted by all the Courts in subsequent decisions on the subject, it was held that

'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'.

There is, however, no such express provision in the document in this case entitling the mortgagor to redeem notwithstanding the period mentioned in the document.

8. The decision of Muttusami Aiyar and Wilkinson JJ. In -- 'Tirugnana sambanda Pandara Sannadhi v. Nallatambi', 16 Mad 486 (D, may also be referred to. It was a decision where in a suit for redemption the mortgage deed provided that the mortgagee should pay himself the debt from the rents and profits of the estate and for the surrender of possession, when the debt is so paid off. It was held that the event on which the obligation to surrender is made by the parties to depend, is the realisation of the principal money and interest by the mortgagees themselves from the rents and profits of the mortgaged property and the possession by the mortgagees until that event occurs is of the essence of the transaction. After referring to Section 60, Transfer of Property Act prior to the amendment where the right to redeem arose after the principal money had become payable the learned Judges observe as follows:

'These provisions of the law point to the conclusion that the right of redemption accrues, when, according to the contract of the parties, the mortgage money has become payable and is paid or tendered or when it is satisfied from rents and profits, when such is the mode of payment indicated by the contract. Prior to the date when. Act 4 of 1882 came into force it was held in several cases in this Presidency that when a day is fixed for the payment of the debt by a contract of mortgage & nothing more appears, the presumption is that the day is fixed for the convenience of the debtor, and that the mortgagor pay the debt at an earlier date.'

But the learned Judges following the decision or the Bombay High Court in '5 Bom 22 (P)' observed:

'that the general principle as to redemption and foreclosure is that in the absence of any stipulation express or implied to the contrary the right to redeem and the right to foreclose are co-extensive, and that where there is a stipulation to pay a mortgage debt in ten years the mortgagor could not redeem at an earlier date.'

The principle that right to redeem & the right to foreclose are co-extensive has now been incorporated after the amendment in Section 60, Transfer of Property Act by the substitution of the word 'due' for the word 'payable' since doubts had arisen, as. I have stated in referring to Mitra's commentaries on the Transfer of Property Act. But after the amendment, since the right to redeem arises only after the mortgage money has become due, there is no doubt that the said principle has received recognition in Section 60, Transfer of Property Act. The question, therefore, as to whether the clause as to the payment within or at a certain time mentioned in the deed was for the benefit of the mortgagor would not arise, in view of the present language of Section 60, Transfer of Property Act. Unless and until the mortgage-money becomes due, there is no right of redemption vested in the mortgagor. The mortgagee cannot sue for foreclosure and the mortgagor whose rights for redemption accrue under Section 60, Transfer of Property Act is equally prohibited from suing for redemption until after the mortgage-money becomes due which is after the period mentioned in the document.

As to what is meant by the word 'due' a reference to Article 132, Limitation Act and the decisions under that Article could place it beyond and controversy. The article of the Limitation Act which applies to a suit for redemption is Article 148 where a period of 60 years is provided for a suit against the mortgagee to redeem or to recover possession of immovable property mortgaged when the right to redeem or to recover possession accrues. The right to redeem is provided under Section 60, Transfer of Property Act which right accrues to the mortgagor after the principal money has become due. In Article 132, which provides for limitation for a suit to enforce payment of money charged upon immoveable property for a period of 12 years, the time from which the period begins to run is when the money sued for becomes due. It was held in -- 'Lasadin v. Gulab Kwnwar' that under the Indian Limitation Act, 1908, Schedule I, Article 132 a suit to enforce a mortgage for a stipulated period can be instituted within twelve years of the expiry of the period, although a default by the mortgagor has occurred during the period and by the terms of the mortgage the mortgagee thereupon had an Immediate right to enforce the mortgage, it was held that 'The money becomes payable' within the meaningof the above article only when either the stipulated period has expired, or a default having occurred the mortgagee has exercised his option to enforce the mortgage. Their Lordships of the Privy Council observed that in their, opinion the mortgage-money does not 'become due' within the meaning of Article 132, Limitation Act until both the mortgagor's right to redeem and the mortgagee's right to enforce his security have accrued. In view of the right of the plaintiff arising under Section 60, Transfer of Property Act to sue for redemption only at any time after the principal money has become due and if a period is fixed in the document as in the present, case, this 60 years is to be counted from the date when the principal money becomes due which will be in this case 15-7-1685. In that view the suit is in time.

9. The question would still arise even after the amendment of Section 60, Transfer of Property Act where the word 'due' has been substituted for 'payable' whether it would be open to the parties to a mortgage to stipulate that in so far as the right of the mortgagee to foreclose would depend upon the period mentioned in the document, the right of the mortgagor to redeem could not, by an express stipulation, be at any time from the date of the mortgage even without waiting for the expiry of the period mentioned in the document. The decision of the Privy Council in -- 'A.I.R. 1914 PC 36 (H)' lends support to this view. It will be open to have such a stipulation and I do not see any objection to the parties agreeing to introduce in the mortgage a stipulation of that nature. The provisions of Section 60, Transfer of Property Act would not prevent the parties from entering into a contract that notwithstanding the period mentioned in the document when the principal money becomes due which would be only period counted for the purpose of entitling the mortgagee to sue for foreclosure, it will still be open to the mortgagee to have the right of redemption advanced. The right to redeem in such cases would arise as a result of the contract and not by virtue of the right under Section 60, Transfer of Property Act. That question does not, however, arise in this case, since in my view of the construction of the document, there is no question that in this document there is no provision entitling the mortgagor to exercise his right of redemption at any time prior to the period fixed viz., 15-7-1885. Both under the terms of the contract and under Section 60, Transfer of Property Act, there cannot be any doubt in the present case that the right to redeem only arises after the period mentioned in the document.

10. The appeal is allowed and the decree for redemption is passed with costs here and in theCourts below. Time for redemption six months.Leave refused.


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