Skip to content


S.A. Ramiah Nadar and anr. Vs. Rajalakshmi Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai High Court
Decided On
Reported in(1975)2MLJ175
AppellantS.A. Ramiah Nadar and anr.
RespondentRajalakshmi Ammal and anr.
Cases ReferredMarayana Chettiar v. Rangaswamy Naidu and Ors.
Excerpt:
- .....a personal decree had been filed out of time. the question before the full bench was whether the suit filed beyond the period of six years from the date of the instrument was within time. after noticing the earlier decisions on the point, at page 770 it was observed:without hesitation we accept as being correct the decisions of this court which say that when a mortgage bond provides that the mortgage money shall be payable on demand it becomes repayable at once and limitation starts from the date of the bond.the decision in vaithilinga nadar and anr. v. narayanasami ayyan and ors. (1906) 16 m.l.j. 364, is inconsistent with this decision of the full bench and cannot, therefore, be treated as good law.8. though it is unnecessary to cite any further decision after the full bench decision.....
Judgment:

V. Sethuraman, J.

1. The defendants have filed this appeal. The plaintiffs filed the suit for recovery of a sum of Rs. 600 due on a mortgage deed, dated 19th November, 1951 which is Exhibit A-1 in the case. It recites that the house property described in the schedule was usufructuarily mortgaged for a loan for discharging certain debts incurred in connection with the business. It gives a right to redeem the mortgage to the mortgagor on or before 30th Kartikai of next year which corresponds to 14th December, 1952. In default of such redemption on that date, it is agreed that the mortgagor will pay the amount whenever demanded and redeem or discharge the mortgage.

2. The present suit was filed on 19th July, 1969. The defendants-appellants objected to the maintainability of the suit on the ground that it was barred by limitation under Article 62 of the Limitation Act, 1963.

3. The Trial Court accepted the objection of the defendants and dismissed the suit. On appeal the learned Subordinate Judge, following the decision in Narayana Chettiar v. Rangaswamy Naidu and Ors. : (1968)2MLJ445 , held the period of limitation would start running only from the date of demand, that in the present case the demand was on 25th July, 1968, and that therefore the suit was within time. He distinguished the decision in Narayana Chettiar v. Rangaswamy Naidu and Ors. : (1968)2MLJ445 , on the ground that it was inconsistent with the earlier Bench decision in Vdithilinga Nadar and Anr. v. Narayanaswami Ayyan and Ors. (1906) 16 M.L.J. 364. He therefore, passed a preliminary decree for the amount due and fixed the time for payment as three months.

4. In the present appeal the learned Counsel for the appellants submitted that the Court below was wrong in proceeding as if the suit was within time, that the suit should have been, filed either within the period of 12 years from 19th November, 1951 when the mortgage deed was executed, or within the period of 12 years from 14th December 1952, the date fixed for redemption and that as the suit had been filed much later than the period of 12 years from either of these two dates, it was barred by limitation under Article 62 of the Limitation Act. The learned Counsel for the respondents supported the decision of the learned Subordinate Judge on the ground that the decision in Vaithilinga Nadar's case (1906) 16 M.L.J. 364, was rightly applied.

5. Article 62 of the Limitation Act deals with suits to enforce payment of money secured by mortgage or otherwise charged upon immovable property. The period of limitation is 12 years from the date when the money sued for became due. I have thus, first to see as to when the money sued for became due. If the demand made by the mortgagee is to be the starting point of limitation, then certainly the suit would be within time. It is on this aspect that I have to consider the decisions brought to my notice.

6. In Vaithilinga Nadar and Anr. v. Marayanasami Ayyan and Ors. (1906) 16 M.L.J. 364, a Bench of this Court was concerned with the construction of the words 'on demand'. That was a case of a mortgage document dated 15th September, 1878, providing for payment of interest on the 15th of September, each year and payment of the principal on the fifth year. If the amount was not paid then, the mortgagor undertook to pay the amount on demand. The default in payment took place in 1879 and the plaint was presented on 14th September, 1895. It was held that the words ' on demand ' were intended to import a condition that the demand fell within the period, and that therefore the suit was not barred by the law of limitation-

7. The same question came up for consideration in a number of cases later on and there was some difference of opinion, so that the matter came to be referred to a Full Bench, whose decision is reported in Vali Venkataswami Chettiar v. Ramalingam : AIR1945Mad157 In that case the mortgage bond provided that the mortgage money would be payable whenever demanded. The mortgaged property was sold, but the amount realised was not sufficient to discharge the full liability. The mortgage deed had been executed on 2nd June, 1931, and the suit to enforce the payment was filed on 22nd February, 1938. As more than six years had elapsed from the date of the mortgage deed, the trial Court dismissed the suit on the ground that the application for a personal decree had been filed out of time. The question before the Full Bench was whether the suit filed beyond the period of six years from the date of the instrument was within time. After noticing the earlier decisions on the point, at page 770 it was observed:

Without hesitation we accept as being correct the decisions of this Court which say that when a mortgage bond provides that the mortgage money shall be payable on demand it becomes repayable at once and limitation starts from the date of the bond.

The decision in Vaithilinga Nadar and Anr. v. Narayanasami Ayyan and Ors. (1906) 16 M.L.J. 364, is inconsistent with this decision of the Full Bench and cannot, therefore, be treated as good law.

8. Though it is unnecessary to cite any further decision after the Full Bench decision mentioned above, I may, however, refer to a decision of a learned single Judge of this Court in Marayana Chettiar v. Rangaswamy Naidu and Ors. : (1968)2MLJ445 . In that case the mortgage document was a combination of a simple mortgage and usufructurary mortgage containing a personal covenant for payment. On the date of the mortgage itself the mortgaged properties were leased, by the mortgagees to the mortgagor for a period of five years from 17th May, 1927. The mortgagee demanded the amount in 1959, that is, 32 years after the execution of the mortgage deed. Thereafter he filed a suit. It was held that the starting point of limitation under Article 132, which was the corresponding Article under the Limitation Act of 1908, was when the money sued for became due. It was contended that so far as the personal covenant was concerned, the money did not become due till demand for the money was made. It was held that the money became payable on the expiry of the five year period. If the contention, that the money became due only on demand by the the mortgagee, was accepted, it was pointed out that the mortgagee, by not making the demand, could postpone redemption and that the clause would then become a clog on redemption. This contention was, therefore, rejected.

9. The result of the above discussion is that the mortgage money became due at the time when the period fixed for redemption by the mortgagor expired. The agreement to pay whenever demanded did not mean that demand was a condition so that it became due only on that date. In the present case, the amount became due on 14th December, 1952 when the period fixed for redemption came to an end. The suit should have been filed within a period of 12 years thereafter. As it was not so filed, the suit was rightly dismissed by the trial Court. The decision to the contrary by the learned Subordinate Judge is, therefore not correct. This appeal is, therefore, allowed and the judgment and decree of the Trial Court are restored. No costs in second appeal. No leave.


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