FUNDABAI ALIAS SARASWATHIBAI Vs. RAMANAGOUDA MALLANAGOUDA PATIL

JUDGEMENT

(1.) The appellants are defendants: the respondents are plaintiffs. The suit was filed for possession of S. No. 376 Muttalgeri village, Badami Taluk, along with a house and a site on the ground that the plaintiffs are entitled to possession of the same as mortgagees under the deed of mortgage Exhibit 78, dated 9-9-1941. The first defendant is the husband of the first appellant (Defendant 1-A) and father of defendants 2 and 3. Defendant-1 had mortgaged the suit properties in favour of the father of plaintiffs. Defendant 6 is the mother of the plaintiffs. The deed of mortgage provides that the consideration of the mortgage is Rupees 1,500/-; that the mortgagee should be in possession for a period of 9 years, the nature of mortgage being a self redeeming mortgage. According to the case of the plaintiffs the mortgagee was dispossessed after three years from the date of mortgage, though he was entitled to possession for a period of 9 years. The suit was filed on 15-12-1956. The defendants admitted the mortgage, but contended that the original mortgagee was in enjoyment of the property till his death in 1946 and thereafter his widow. Defendant 6, was in possession till 1950, that therefore the entire mortgage amount has been recovered and that defendant 6 gave up possession voluntarily to the defendants since the stipulated period of 9 years had expired. Both the lower Courts negatived the contentions of the defendants and held that the mortgagee lost possession after three years from the date of mortgage, and accordingly, both the Courts have decreed the plaintiff's suit.

(2.) It is contended by Shri Deshpande, learned counsel for the appellants, that the lower Courts erred in holding that Exhibit 79, the document on 21-7-1946, amounts to an acknowledgement so as to save limitation for the suit. His contention is that the circumstances under which the said document was executed show that the mortgagor had no intention to acknowledge his liability as a mortgagor, and that the suit which is for enforcing the right to possession is not in time since Exhibit 79 does not amount to acknowledgement of the right of the mortgagee for possession. His contention is that even though Exhibit 79, refers to the mortgage deed, there is not an acknowledgement of the right of the mortgagee to the possession of the mortgaged property. The Bombay Agriculturists Debtors Relief Act had come into force; under that Act both the creditor as well as the debtor, if the latter happened to be an agriculturist, had to file an application for adjustment of the debt, before the Debt Adjustment Board. If the creditor failed to file the necessary application within the tune (prescribed under the Act), it is provided in the Act, that the debt would stand extinguished, His contention on behalf of the appellants is that this document was taken by the mortgagee from the mortgagor to show that the debtor was not an agriculturist and that no such application was necessary to be filed under the said Act; and that no such application was actually filed by the mortgagee. The document executed by the mortgagor in favour of the mortgagee reads as follows :-

(3.) There was an earlier simple mortgage with regard to S. Nos. 433 and 465 mentioned in the abovesaid document, executed by the first defendant in favour of the father of the plaintiffs and that mortgage was not subsisting on the date of Exhibit 79. Since Exhibit 78, the mortgage deed dated 9-9-41, came to be executed after the adjustment of the amount due under the simple mortgage, there was no other transaction between the parties on the date of Exhibit 79. except the mortgage under Exhibit 78. Hence the Survey numbers of land S. Nos. 433 and 465 shown in Exhibit 79 appear to be a mistake for S. No. 376 which is the property secured under Exhibit 78. The debt amount, the description of the kind of the mortgage referred to in the document all relate to Exhibit 78.