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Mahammed Ismail and ors. Vs. Sharfatullah and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in90Ind.Cas.763
AppellantMahammed Ismail and ors.
RespondentSharfatullah and ors.
Cases ReferredSoni Ram v. Kanhaiya Lal
Excerpt:
construction of document - usufructuary mortgage--redemption provided after possession by mortgagee--limitation, operation of--limitation act (ix of 1908), schedule i, article 148. - .....and that suit was non-suited. nothing came out of those proceedings. then the mortgagees brought a suit for possession of the mortgaged properties in the year 1859 and that suit terminated in a decree for possession in favour of the mortgagees as mortgagees. that decree was passed in 1860.3. the present suit was brought on the 12th september 1919. this suit was brought not only against the representatives of the original mortgagees defendants nos 1 to 12 but against a number of other defendants, who, according to the plaintiffs were in possession of a part of the mortgaged property as purchasers from the mortgagees.4. the main defence and the common defence of all the defendants was that the suit was barred by limitation. there were special defences set up by the other defendants, i mean.....
Judgment:

Chakravarti, J.

1. This appeal is by the plaintiffs and arises out of a suit brought by them for redemption and after redemption for recovery of possession of the mortgaged property. The facts shortly stated are these:

2. It appears that the predecessors of the plaintiffs gave a mortgage or the properties in suit in favour of the predecessors of defendants Nos. 1 to 12. The plaintiffs alleged that the mortgage was an usufructuary mortgage and that under the conditions of that mortgage the mortgagees were to enjoy possession of the properties in lieu of interest and that the mortgage would be redeemable on payment of the principal money which was a sum of Rs. 188. It is not stated that there was any date fixed for the re-payment of the money and as it would appear later on no such date was fixed at the time of the original mortgage transaction. The plaintiffs now want to redeem the mortgage of 1854 on payment of the principal amount which was paid under the mortgage. It was further alleged by the plaintiffs that in the year 1855 a suit was brought by the mortgagee and that suit was non-suited. Nothing came out of those proceedings. Then the mortgagees brought a suit for possession of the mortgaged properties in the year 1859 and that suit terminated in a decree for possession in favour of the mortgagees as mortgagees. That decree was passed in 1860.

3. The present suit was brought on the 12th September 1919. This suit was brought not only against the representatives of the original mortgagees defendants Nos 1 to 12 but against a number of other defendants, who, according to the plaintiffs were in possession of a part of the mortgaged property as purchasers from the mortgagees.

4. The main defence and the common defence of all the defendants was that the suit was barred by limitation. There were special defences set up by the other defendants, I mean the defendants other than the defendants Nos. 1 to 12 upon the special circumstances of the case for each set of defendants. I ought to have stated that the plaintiffs allegation in their plaint that the mortgage was an usufructuary mortgage was not traversed or in any way controverted by the defendants in their written statement. The Trial Court came to the conclusion that the mortgage was a usufructuary mortgage. The original mortgage-deed is not forthcoming; but it appears that the deed was produced in the suit of 1850 and the terms of the mortgage have been gathered from the proceedings of that suit, and, as I have already stated the Court of first instance in trying the question as to limitation says as follows--'In case of usufructuary Mortgage embodying stipulation for redeeming the mortgage whenever money is paid right to redeem undoubtedly arises from the date of the mortgage. Therefore, there was no question raised in the Court of first instance that the mortgage in question was anything less than an usufructuary mortgage. As no date for re-payment of the money was stated in the original mortgage the Court of first instance held that the period of limitation would run from the date of the mortgage. It appears that, that Court came to the conclusion that the suit was not barred by limitation although it was brought evidently after more than 60 years from the date of the original mortgage, namely February 1854 because there was admission of liability within 60 years of this. It was sought by the plaintiffs in the Court of first instance to establish this acknowledgment of the rights of the mortgagees in the previous suit of 1859. The Court, came to the conclusion that the bar of limitation was saved by the acknowledgment within Section 19 of the Limitation Act. The Court of first instance decreed the suit.

5. On appeal by the defendants the lower Appellate Court has disposed of the case on the question of limitation holding that the acknowledgment relied upon by the plaintiffs was really not established by the proceedings of the earlier suit; and in that view the suit was dismissed without any trial of the rights of the various defendants Nos. 1 to 12 the original mortgagees. As I have already stated the present appeal is by the plaintiffs and the learned Advocate who has appeared for them did not question the finding of the lower Appellate Court that there was no acknowledgment within the meaning of Section 19 to save the suit from the bar of limitation. He, however, contended that the period of limitation would run not from the date of the mortgage but from the date when the mortgagees obtained possession of the properties and on the ground that the mortgage was not a completed transaction until the mortgagees obtained possession as usufructuary mortgagees.

6. It was, secondly, argued that apart from the general question as to whether an usufructuary mortgage is a completed mortgage until possession is delivered, in the present case the right of redemption did not arise under the terms of the mortgage until the mortgagees had obtained possession and enjoyed such possession and then the right of the mortgagors to redeem would arise.

7. The learned Vakils for the defendants raised the question as to whether the mortgage in suit was really an usufructuary mortgage or not. They contended that the mortgage was really a mortgage by conditional sale. It appears to us, however, that it was not disputed by the defendants that the mortgage was an usufructuary mortgage as was alleged in the plaint by the plaintiffs. The Court of first instance clearly proceeded upon the view that the mortgage was an usufructuary mortgage. In the lower Appellate Court, it appears, that no question was raised by the defendants who were appellants before that Court that the finding of the First Court that the mortgage was an usufructuary mortgage was not correct. The points for determination as stated by the learned Subordinate Judge do not show that such a question was raised before him. We have the terms of the mortgage as set out in the judgment and decree of the year 1860 and we agree with the learned Munsif that the mortgage was an usufructuary mortgage. Then the question arises when did the time run against the plaintiffs for redemption of the mortgage. Article 148 of the Limitation Act runs as follows: 'Against a mortgagee to redeem or to recover possession of immoveable property mortgaged. When the right to redeem or to recover possession accrues.' Apparently, therefore, when there is a date for re-payment fixed in the original mortgage-deed, the time would run from such date. The question then arises when does the right to redeem or to recover possession accrue when there is no specific date mentioned in the terms of the mortgage. Ordinarily in such a case the time would run from the date of the mortgage and as an authority for this proposition it is sufficient to refer to the case of Soni Ram v. Kanhaiya Lal 19 Ind. Cas. 291 : 40 I.A. 74 : 13 M.L.T. 437 : 17 C.W.N. 605 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 17 C.L.J. 488 : 15 Bom. L.R. 489 : 35 A. 227 : 25 M.L.J. 131 (P.C.) where the Judicial Committee of the Privy Council pointed out that in the absence of a date fixed in the mortgage deed the time would run from the date of the mortgage. It was argued by the learned Advocate for the appellants that an usufructuary mortgage is not completed until the mortgagee obtains possession of the property and limitation will not run until the transaction is completed and in support of this view the learned Advocate relies upon the language of Section 58 of the Transfer of Property Act. Although the mortgage in question was executed long before the Transfer of Property Act came into operation the provisions of the Act may be relied upon in support of the contention now raised as a general principle of law. In the view that we take of the second question we think it is unnecessary for us to decide this questions for the purposes of this appeal. It appears to us from the terms of the mortgages as set out in the earlier litigations that it was stipulated in the mortgage in question that the right of redemption would accrue after the mortgagees were put in possession and after they had enjoyed the usufructs of the property. As no date for redemption was fixed it appears to us that this condition in the deed itself is very material for the purpose of showing what was in the contemplation of the parties as to when the right of redemption would be exercisable by the mortgagors. It appears from the judgment in the suit of 1859 that the terms of the mortgage were stated as follows: 'It clearly appears therefrom that Feda Gazi and Hira Bibi and Khaidja Bibi mortgaged the disputed taluka lands to the plaintiffs' father on receipt of Rs. 188 from him on condition that the plaintiffs' father would retain possession of the said land and that he would realise rents and that afterwards if the mortgagor re-paid the money, then the land would be released.' It, therefore, appears from the terms of this mortgage that it was contemplated that the right of redemption of the mortgagors would accrue only after the mortgagees were put in possession of the mortgaged properties and had realised rents of those properties and, as I have already stated, in the present case, the possession of the mortgaged properties was not delivered to the mortgagees at the time of the mortgage but the mortgagees obtained possession of the properties as usufructuary mortgagees after they had obtained a decree for possession in the year 1860. We, therefore, think that he contention of the learned Advocate that the right to redeem the mortgage as provided for in Article 148 of the Limitation Act did not arise under the terms of the mortgage until after possession had been delivered and enjoyed by the mortgagees is sound. That being so, the suit which was brought well within sixty years from 1860 would be within time. We have not got the exact date when possession was recovered under the decree of 1860, but possession could not have been obtained earlier than the 4th December 1860 which would be within 60 years from the date of the present suit which was instituted on the 12th September 1919. In this view, therefore, we think that the suit of the plaintiffs so far as the original mortgagees are concerned, is not barred by limitation. But as I have already stated there are several other defendants who are in possession of parts of the mortgaged properties under various rights which have accrued during this long lapse of time from the time of the mortgage.

8. In these circumstances we think the best course would be to remit this case to the lower Appellate Court for raising clear issues as to the defence of each of the numerous defendants in so far as they are concerned and to try the questions which will arise between the plaintiffs and those defendants, and we order accordingly. If there is any question of special limitation as regards any of those defendants that question will also be decided by the lower Appellate Court.

9. The questions which are to be tried by the lower Appellate Court, are subject to this limitation, namely, that the questions would be decided only between the plaintiffs and those defendants who have appealed against the decree passed by the Court of first instance or were impleaded as respondents in the appeal.

10. The appellants are entitled to their costs in this appeal against the original defendants Nos. 1 to 12. As regards the costs of the other defendants in this appeal, they shall abide the result of the trial by the lower Appellate Court.

11. I ought to mention here that some of the defendants who had died were not represented in this appeal. It was contended on behalf of the respondents that the whole appeal was incompetent and should be dismissed. In our opinion this contention is not sound. All the original mortgagors are properly before us and so far as some of the purchasers-defendants who are not properly represented, the result of this appeal will not affect their right. This dismissal of the suit as against them will, stand good. The plaintiffs must redeem the whole mortgage.

Cuming, J.

12. I agree.


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