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Kunhimai Kutty Beari and anr. Vs. Halekote Alsabi and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1921Mad636; 62Ind.Cas.723
AppellantKunhimai Kutty Beari and anr.
RespondentHalekote Alsabi and ors.
Cases ReferredMarturu Subbamma v. Gadde Narayya
Excerpt:
mortgage, usufructuary - deed, construction of--covenant to pay--option to pay after stipulated time--mortgagee's suit for possession--limitation, starting point of--transfer of property act (iv of 1882), section 68(c)--limitation act (ix of 1908), schedule 1, article 132--subsequent document--covenant to pay after fixed period, effect of. - - 'till the above stated vaida (time), you shall take possession, make improvements and enjoy and also pay the thirva due, in respect of this property, wang no. 4 ,the right of the mortgagee to sue under section 68(c) of the transfer of property act arose when the mortgagor failed to deliver possession of the property to the plaintiff. reckoning time from that date, the suit is clearly barred under article 132 of the limitation act, which..........ildarwar document, meaning exhibit a. that does not necessarily refer to the period after the expiry of 15 years. the claim under exhibit b must also be held to be barred.3. the language of exhibit c, the other further document, is, however, different. it says: 'if i failed to pay even then, i shall pay the amount of this document along with the amount of the kanam under the above-mentioned usufructuary mortgage after the vaida (time) of the said usufructuary mortgage document.' here, there is an express covenant, on the part of the mortgagor, to pay the amount covered by exhibit c, after the term of 15 years mentioned in exhibit a, and reckoning time from that date, the suit, so far as it is based on exhibit c, is not barred. the plaintiff, therefore, will have a decree for the mortgage.....
Judgment:

1. The question of limitation relates to the construction of a clause in Exhibit A, the deed of usufructuary mortgage. That clause is in these words: 'Till the above stated vaida (time), you shall take possession, make improvements and enjoy and also pay the thirva due, in respect of this property, Wang No. 81.' It is argued that we must hold that the passage contains a covenant to pay and that, therefore, the mortgagee was entitled to rely on that covenant and that this suit is in time, as it was filed within 12 years of the breach of the covenant. But we must cay that it is difficult to find any covenant to pay in this Clause What the mortgagor says is that the mortgagee is to be in possession and enjoyment of the land for 15 years, and, after the expiry of the 15 years, if he wishes to get back his land, he will pay the amount due to the mortgagee. There is no unqualified promise to pay. It is an option given to the mortgagor, in case he wanted to do so, to re-pay the mortgage amount and get back his properties. We have been referred to a number of oases in which a similar question arose, as to whether certain words in particular deeds of mortgage contained a covenant to pay. But we do not think that much assistance can be derived from those decisions in construing the particular document before us. We might, however, mention that the case of Ranga Pillai v. Narasimma Ayyangar 47 Ind. Cas. 852 bears a close resemblance to the facts of this case, and there the learned Judges held that there was no covenant to pay. If there was no covenant to pay on the part of the mortgagor, then according to the Full Bench decision in Marturu Subbamma v. Gadde Narayya 43 Ind. Cas. 4 , the right of the mortgagee to sue under Section 68(c) of the Transfer of Property Act arose when the mortgagor failed to deliver possession of the property to the plaintiff. Reckoning time from that date, the suit is clearly barred under Article 132 of the Limitation Act, which undoubtedly applies. We are, therefore, of opinion that the learned Judge's decision on the question of limitation, so far as the suit relates to Exhibit A, is wrong.

2. As regards Exhibit B, the case really cannot be distinguished from that in Exhibit A, for all that it says is that, if the mortgagor fails to pay even in December 1899, he will pay the principal and interest in arrears, with the kanam amount due, under the under-mentioned Ildarwar document, meaning Exhibit A. That does not necessarily refer to the period after the expiry of 15 years. The claim under Exhibit B must also be held to be barred.

3. The language of Exhibit C, the other further document, is, however, different. It says: 'If I failed to pay even then, I shall pay the amount of this document along with the amount of the kanam under the above-mentioned usufructuary mortgage after the vaida (time) of the said usufructuary mortgage document.' Here, there is an express covenant, on the part of the mortgagor, to pay the amount covered by Exhibit C, after the term of 15 years mentioned in Exhibit A, and reckoning time from that date, the suit, so far as it is based on Exhibit C, is not barred. The plaintiff, therefore, will have a decree for the mortgage amount of Exhibit C, Rs. 290, at Rs. 12 1/2 per cent. from the date of the document, until six months from this date, and thereafter at six per sent, until realization. Time for redemption six months. The plaintiff's suit is otherwise dismissed. Costs in proportion here and in the Courts below.


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