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Fallesatha Banu Vs. Muhammad RashidhuddIn Quraishi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai
Decided On
Reported inAIR1934Mad656; 153Ind.Cas.462
AppellantFallesatha Banu
RespondentMuhammad RashidhuddIn Quraishi and ors.
Cases ReferredAnnapurnamma v. Akkayya
Excerpt:
.....had purchased the equity of redemption and had recovered possession of the properties, yet this suit was filed only in 1926, and, as already observed, it was filed on the very day, judgment was pronounced against her father in the suit brought by defendants 4 and 5. the suit prima facie appears to be against her father to enforce her claim under the mortgage, ex......the appeal arises out of a suit instituted by the plaintiff to recover possession of the suit properties and the share of the mortgage amount duo to her under ex. a, the suit mortgage. the parties to the suit are muhammadans and their relationship is indicated in the genealogical tree given in the lower court's judgment. after the death of jalaluddin and his daughter syed unnissa bibi, a usufructuary mortgage (ex. a, dated 10th november 1893) of 13 items of jenm properties was executed by his heirs, defendant 1, and hauifa bi, his wife, for herself and acting as the guardian of defendant 2, and others, in favour of syed unnissa bibi's husband, defendant 3, and their minor daughter, the plaintiff. the mortgage amount of rs. 4,000 represented the ma bar paid by defendant 3 at the.....
Judgment:

Madhavan Nair, J.

1. The plaintiff in the appellant. The appeal arises out of a suit instituted by the plaintiff to recover possession of the suit properties and the share of the mortgage amount duo to her under Ex. A, the suit mortgage. The parties to the suit are Muhammadans and their relationship is indicated in the genealogical tree given in the lower Court's judgment. After the death of Jalaluddin and his daughter Syed Unnissa Bibi, a usufructuary mortgage (Ex. A, dated 10th November 1893) of 13 items of jenm properties was executed by his heirs, defendant 1, and Hauifa Bi, his wife, for herself and acting as the guardian of defendant 2, and others, in favour of Syed Unnissa Bibi's husband, defendant 3, and their minor daughter, the plaintiff. The mortgage amount of Rs. 4,000 represented the Ma bar paid by defendant 3 at the time of his marriage with Syed Unnissa. The plaintiff claims a 4/6ths share of this amount, namely Rs. 3,333-5-4. Out of the income of the properties 500 paras of paddy represented the interest on the mortgage amount. After the mortgage the properties were taken on lease back by the mortgagors under the pattam chit Ex. B.

2. In 1895, the mortgagors sold the properties to defendant 3 for a sum of Rs. 10,000, Rs. 4,000 of this amount being credited towards the mortgage amount due under Ex. A. After the purchase the properties were treated by defendant 3 as if they were his own, ignoring the rights of the plaintiff who was a co-mortgagee under Ex. A. He created successive mortgages over the properties in favour of different persons. Finally a mortgage with possession was executed in favour of defendants 4 and 5 and the properties were taken back by him on a lease. Defendants 4 and 5 got a decree for possession in O.S. No. 31 of 1926 and this suit was filed by the plaintiff as a pauper on the day the judgment was delivered in the suit. Various contentions were raised by the contesting defendants. It is not necessary for the purposes of this appeal to refer to all the contentions. The Subordinate Judge dismissed the suit as barred by limitation under Article 132, Lim. Act. The mortgage money due under Ex. A having fallen due in 1900, a suit for recovery of the amount due under it instituted after 1912 would be barred by limitation.

3. In the lower Court the plea of limitation was sought to be got rid of by having recourse to Section 20, Lim. Act, and the plaintiff's case being throughout that she had been receiving rent, her 5/6ths share (416 2/3 paras of paddy a year) from her father till 1922-23. Oral evidence in support of this case was given by the plaintiff. This evidence wad totally disbelieved by the learned Judge. We were taken through the evidence by the learned Counsel for the appellant, but the evidence has not produced any impression on our minds favourable to the plaintiff. Defendant 3 (the father) and the plaintiff (his daughter) were living together. He was maintaining her probably from out of the income of. the properties, but there is no reliables evidence to show that the plaintiff was receiving her share of 416 2/3 paras of paddy yearly from her father. It is unnecessary to repeat the reasons given by the learned Judge for disbelieving the oral evidence tendered by the plaintiff. Unless interest is received as such, Section 20, Lim. Act, cannot extend the period of limitation in favour of the plaintiff. We agree with the lower Court's finding on this point. In this Court Mr. Narayanaswami Ayyar relied on Clause 2, Section 20, Lim. Act, which says

where mortgaged land is in the possession of the mortgagee, the receipt of rent or produce of such land shall be deemed to be a payment for purposes of Sub-section (1), i.e., a payment for extending the period of limitation. The plaintiff's case apparently is that she, in spite of the purchase of the properties by her lather under Ex. 2, still remains a mortgagee, while defendant 3 occupies the position of a mortgagor. Having regard to the facts of the case and also the law bearing on the point, it is difficult to see how it can be said in this case that the mortgaged land is in the possession of the mortgagee after Ex. 2.

4. The various encumbrances created on the properties by defendant 3 after his purchase of the equity of redemption show clearly that he treated the mortgage Ex. A as non-existent and the properties as his own ignoring altogether the rights of the plaintiff who no doubt had the rights of a co-mortgagee under that document. In the mortgage deeds executed by defendant 3 he did not refer to the plaint mortgage. He dealt with the properties as if the plaintiff had no subsisting mortgage right over them. Whether defendant 3 was right in dealing with the properties in this manner or not, one thing is clear that in law the purchase of the equity of redemption by defendant 3, admittedly one of the co-mortgagees, put an end to the mortgage. In Barber Maran v. Ramanna Goundan (1897) 20 Mad. 461,

the sum due upon a mortgage was paid to one of the two mortgagees, and he gave an acquaintance without the knowledge of the other mortgage, who now brought this suit upon the mortgage. It appeared that there was no fraud on the part of the mortgagors and that the mortgagee who received payment was not the agent of the plaintiff in that behalf. It was held that the mortgage had been discharged and the plaintiff was not entitled to sue.

(See the head-note). This decision was followed by the majority of the Judges in the Full Bench case in Annapurnamma v. Akkayya (1913) 36 Mad. 544, sea also Appavu Chettiar v. Nanjappa Goundan (1913) 20 I.C. 792, where again it was held that payment to one of two co-mortgagees is a valid discharge of the mortgage debt following Annapurnamma v. Akkayya (1913) 36 Mad. 544. As against these cases Mr. Narayanaswami Ayyar relied on two cases Raimaawami v. Kotayya 1925 Mad. 261 and Arunachalam Chetty v. Ramaswamy Iyer 1928 Mad. 933 neither of which, having regard to the facts, has any application, to the present case. In Raimaawami v. Kotayya 1925 Mad. 261 it was held that,

in order that one of several joint promisses could give a valid discharge of a debt so as to bind all the promisees, the promisor must make an actual payment to him of a debt; a mere undertaking to pay him the amount at soma future date cannot deprive the other promisees of their right to sue for the debt.

5. In the case before us the mortgage debt was wiped out and the equity of redemption was bought under Ex. 2 by defendant 3 by making an additional payment; no one can say that there was only a promise of payment in this case. Nor can it be said that here was a remission of the mortgage debt by defendant 3 as in Arunachalam Chetty v. Ramaswamy Iyer 1928 Mad. 933 where he purchased the equity c: redemption. The decision in Srinivasa Barvi v. Meharbai 1916 P.C. 5, relied on by the appellant's counsel, also does not help him. The present question did not arise for decision in that case. It is true that the Calcutta Court has taken a different view on this question and the learned commentators, Pollock and Mulla, doubt the correctness of the Madras view. But we see no reason why we should not follow the decisions of our own Court which bad been all along followed despite the dissent of the learned Chief Justice in Annapurnamma v. Akkayya (1913) 36 Mad. 544. This aspect of the question of limitation does not seem to have been advanced in the lower Court. We agree with the lower Court that the suit is barred by limitation.

6. When the mortgage and the pattam chit have ceased to exist by reason of Ex. 2, it is difficult to see how the plaintiff can see to recover possession of the mortgage amount, but this right, as we have already said, is barred by limitation. On a consideration of the evidence and the probabilities, we are satisfied that this is not a bona fide case. As the learned Subordinate Judge rightly observes, the plaintiff brings this suit at the instigation of her father, defendant 3, pretending that they have now quarrelled. She attained majority in 1906. She knew well that her father had purchased the equity of redemption and had recovered possession of the properties, yet this suit was filed only in 1926, and, as already observed, it was filed on the very day, judgment was pronounced against her father in the suit brought by defendants 4 and 5. The suit prima facie appears to be against her father to enforce her claim under the mortgage, Ex. A, but really it is intended to help herself and her father to retain possession of the properties by preventing defendants 4 and 5 from recovering possession of the same in execution of their decree. The present suit is a desperate effort by the daughter and father to keep the suit properties in their possession. The appeal is dismissed with coats of respondent 19. The appellant must pay the court-fee due to Government.


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