Skip to content


Jagna Sanyasiah and ors. Vs. Mycherla Peda Atchanna Naidu and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in70Ind.Cas.759
AppellantJagna Sanyasiah and ors.
RespondentMycherla Peda Atchanna Naidu and ors.
Cases ReferredSubramania Aiyar v. Balasubramania Aiyar
Excerpt:
.....act (ix of 1908), schedule i, article 132, application of--mortgage--mortgage in favour of usufructuary mortgagee--suit for sale subject to usufructuary mortgage, competency of--evidence act (i of 1872), section 90--document over thirty years old--consideration, presumption of--receiver, suit against--omission to obtain sanction of court, effect of. - - 9 to 16, given as additional security was, i think, intended to embody merely the undertaking given by the mortgagors to discharge those usufructuary mortgage-deeds, exhibits i to v, so as to make the properties better security and not to postpone the date from which the cause of action for the plaintiff's enforcement of his right to recover money under exhibit a was to arise. 5. the respondents' contention in their memorandum..........with the lower court on the construction put by it upon exhibit a. the provision about srinodhu appadus usufructuary mortgages which occurs in the position which describes the second set of properties, items nos. 9 to 16, given as additional security was, i think, intended to embody merely the undertaking given by the mortgagors to discharge those usufructuary mortgage-deeds, exhibits i to v, so as to make the properties better security and not to postpone the date from which the cause of action for the plaintiff's enforcement of his right to recover money under exhibit a was to arise. the re-demotion of srinodhu appadu's usufructuary mortgages would not be barred for at least sixty years from their respective dates and i am unable to believe that the hypothecatee under exhibit a who.....
Judgment:

Sadasiva Aiyar, J.

1. Defendants Nos. 3, 4, 13 and 14 are the appellants. The facts are somewhat complicated and in setting them out I shall, for the sake of brevity, describe the parties to old transactions, who are the ancestors of some of the parties to the, suit as if they were themselves parties to the suit. There was, first, a usufructuary mortgage of items Nos. 1 to 8 by defendants Nos. 1 and 2 to the plaintiff. Next, there were five usufructuary mortgages under Exhibits I to V executed in the years between 1880 and 1883 in favour of Srinodhu Appadu of items Nos. 9 to 16, the total sum due under these five usufructuary mortgages being Rs. 3,2000. Next, there was a simple mortgage (Exhibit A) in January 1886 for Rs. 6,000 made up of three items: (1) Rs. 3010 due under a simple debt bond of 1879 (Exhibit A-3); (2) Rs. 590 due under a promissory-note, and (3) Rs. 400 paid in case. It is on this last bond (Exhibit A) that the present suit for sale of the plaint properties, items Nos. 1 to 16, is brought.

2. The equity of redemption in half of items Nos. 1 to 8 is now vested in the 13th defendant and the equity of redemption in the other half in the 14th defendant, while the equity of redemption in items Nos. 9 to 16 invested in defendants Nos. 3 and 4 at the result of transactions which it is unnecessary to set out in detail.

3. The important and preliminary question in the case is whether the plaintiff's suit on this bond of 1886 is barred by limitation. One more fact might be stated, namely, that in 1915 defendants Nos. 3 and 4, in whom the equity of redemption in items Nos. 9 to 16 was vested paid Rs. 3,200 to the usufructuary mortgages of 1880 to 18.S3 (Exhibits I to V), The plaintiff's contention is that the date when the money became due to him under the simple mortgage-deed Exhibit A sued on is the date of, the redemption of items Nos. 9 to 16 from the ususfructuary mortgagee (i.e., 1915) and hence this suit is not barred. It is admitted that if his cause of action arose in 1886 itsel the suit would be barred as there are no acknowledgments of indebtedness after the year 1890, and as, admittedly, Article 132 of the limitation Act applies. Hence the question for decision is, what is the date 6n which the amount is borrowed under Exhibit A became due according to the proper construction of its terms. Those terms are to the following effect: 'We shall discharge the principal and interest of this document on the security of the 13 garces of land' (that is items Nos. 1 to 8) 'usufructually mortgaged under the document of 1879 and also of the 15 graces of land usufructually mortgaged to Srinodhu Appadu' under (Exhibits I to V) i.e., the lands mortgaged as the second set, namely, items Nos. 9 to 16 to be security after discharging the debt due to Srinodhu Appadu and we shall pay up the hypothecation debt on the securities above set out and get back the hypothecation bond.' That according to me is the effect of the language used in, Exhibit A the construction of which it may be conceded owing to its involved grammatical construction is not free from obscurity. The lower Court accepted the plaintiff's contention and held that the parties intended that the amount due under Exhibit A was to become due only when, at some future uncertain date, the mortgagors or their representatives-in-interest chose to redeem Srinodhu Appadu and that as Srinodhu Appadu was redeemed only in 1915 it was then that the debt due under Exhibit A became due. After hearing full arguments I am unable to agree with the lower Court on the construction put by it upon Exhibit A. The provision about Srinodhu Appadus usufructuary mortgages which occurs in the position which describes the second set of properties, items Nos. 9 to 16, given as additional security was, I think, intended to embody merely the undertaking given by the mortgagors to discharge those usufructuary mortgage-deeds, Exhibits I to V, so as to make the properties better security and not to postpone the date from which the cause of action for the plaintiff's enforcement of his right to recover money under Exhibit A was to arise. The re-demotion of Srinodhu Appadu's usufructuary mortgages would not be barred for at least sixty years from their respective dates and I am unable to believe that the hypothecatee under Exhibit A who had not only items Nos. 9 to 16 hypothecated to him subject to Srmodhu's mortgage but other properties, items Nos. 1 to 8, would have agreed to wait for sixty years and for the contingency of those properties 9 to 16 being redeemed to get back the Rs. 4,000 lent by him under Exhibit A with the enormous accumulation of the interest provided for under it. In my opinion, the reasonable construction of Exhibit A is that items Nos. 1 to 8 subject to the plaintiff's prior usufructuary mortgage and items Nos. 9 to 16 subject to Srinodhu's usufructuary mortgages were made security for the Rs. 4,000 borrowed under Exhibit A without a stipulation for any particular period for repayment of the amount borrowed. On this construction, therefore, the suit is barred and must be dismissed, reversing the decree of the lower Court.

4. Though it is unnecessary to consider the other question raised in the lower Court and also argued here, I shall shortly give my opinion on the more important of those other questions also, as we were informed that the case might be taken, before their lordships of the Privy Council. The Subordinate Judge considered that of the Rs. 4,000 consideration under Exhibit A only the payment of Rs. 3,010 was proved-, The appellant says that only Rs. 1,800 passed, while the plaintiff's in their memorandum of objections contend that the whole of Rs. 4,000 should be found to have passed. The appellants' contention that Rs. 1,800 alone passed is based upon a clerical omission in Exhibit A which, when referring to Rs. 3,010, refers to it as the principal amount of Exhibit A-3 instead of as the principal amount and interest due till then under Exhibit. A-3. The appellants' contention on this point is, therefore, rejected.

5. The respondents' contention in their memorandum of objections would, in my opinion, have to be allowed as the passing of consideration for a document which is more than 30 years old and which was ever questioned till this suits was brought, should hi taken as proved even if the direct evidence is not as strong as might hi naturally expected in respect of recent transactions. The plaintiffs' first witness, seventh defendant, who is the co-mortgagee with the plaintiffs, proves that the 2nd and 3rd items of consideration, Rs. 590 and Rs. 400, mentioned in Exhibit A also parsed and I see no reason to disbelieve his statement. I, therefore, differ from the lower Court's conclusion on that point.

6. That there was a contention raised by the appellants that as the 14th defendant was impleaded as the Receiver of the estate of a person, Basava Reddi, who owned one half of the equity of redemption in items Nos. 1 to 8 and was sued without the plaintiff's obtaining the permission of the District Court which had appointed him Receiver in a litigation involving the rights of the representatives of Basava Reddi, the suit, so far as that half share was concerned, should have been dismissed. In Karooth Parakote Ammukutty v. Manavikraman 59 Ind. Cas. 568 this Bench, held, that while such sanction was necessary for the maintainability of the suit, the failure to obtain the sanction, can be effectively cured by the plaintiff's obtaining the sanction during the course of the litigation and that the necessity to obtain the sanction was imposed by the Common Law, merely to enforce due respect towards Courts of Justice and that the omission does not affect the jurisdiction of the Courts. It appears from High on Receivers, paragraph 261, that a Receiver might waive his right to put forward such a plea and that he might by his conduct be estopped from raising such a plea in certain circumstances. The Receiver has now been substituted by the heirs of Basava Reddi himself and I think that the objection to want of sanction is no longer available as against the plaintiff, the Receiver having ceased to be on the record.

7. Then, the lower Court thought that the plaintiff could not sue for sale of items Nos. 1 to 8 subject to the prior ususfructuary mortgages in plaintiffs' own favour. It gives no reason for its view; If plaintiffs are entitled to get a decree for sale of items Nos. 1 to 8, they are entitled to have them sold subject to their prior usufructuary mortgages; see Subramania Aiyar v. Balasubramania Aiyar 3 Ind. Cas. 317 .

8. There were one or two other difficult questions argued; but I shall not deal with them.

9. The parties will bear their respective costs in the, lower Court and appellants will get their costs from the plaintiffs in this appeal. The memorandum of objections is dismissed. There will be no costs therein.

Spencer, J.

10. I agree with my learned brother on all points, but I desire to express my opinion only on the point of limitation as we are reversing the lower Court's decree on that point. As the date of payment is not expressly mentioned in Exhibit A it must be assumed that the amount secured by the mortgage was payable on the date of the execution of the document, that is, on 19th January 1886. The wording of this document implies an expectation on the part of the executants that the mortgagors or the mortgagees would redeem the prior mortgagee, Srinodhu Appadu, at an early date. At the same time, I do not think that it was intended by the parties that the mortgagors should have the power to post pone their liability to pay their debt to the mortgagee-plaintiff by moans of their own action in delaying to pay off Srinodhu Appadu's debt. If there had been a real intention to extend the period of limitation beyond the statutory period of 12 years, I should expect to find an expression in apt words of the terms of the agreement relating to the date of repayment, and it would not have been left to be inferred from the words used to describe the items com posing the second part of the security for the loan.

11. The appeal must be allowed and the suit dismissed with costs in this Court.


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