J M DUNDGE Vs. SADRODDIN IMAMSAHEB PINNITOD

JUDGEMENT

(1.) THIS appeal filed against the Judgment and decree passed in R. A. No. 46/1997 on the file of Civil Judge, Senior Division, Gokak, arising out of the Judgment and decree passed in O. S. No. 134/1979 on the file of Additional Civil Judge, Junior Division, Raibag.

(2.) THE appellants are plaintiffs, filed a suit for redemption of the mortgage of the suit schedule property. The facts disclosed that a registered mortgage deed was executed on 10-6-1940 by the defendant No. 8-Masaluddin Jahansaheb pinnitod in favour of the father of the defendants 1 to 6. Under the terms of mortgage it was agreed that the mortgagor shall not redeem for a period of five years from the date of mortgage and thereafter, the mortgage amount if he tender the delivery of possession of the mortgage property, shall take place and only after chaitrapadya day obviously to enable the mortgagees to harvest the crop and to deliver possession, the suit is filed in the year 1978 for redemption of the mortgage. The trial Court decreed the suit and granted the relief of redemption and directed delivery of possession to the plaintiffs. The Appellate Court set aside the Judgment and decree of the trial Court and dismissed the suit on the ground of limitation. Aggrieved by the Judgment of the Appellate Court, the Second Appeal is filed and the following point is formulated for consideration :

(3.) THE terms of the document as narrated above indicate that the parties intended that there shall not be redemption for the first five years of the mortgage. Thereafter, any time the mortgagor is entitled to redeem the mortgage but the delivery of possession was contemplated to be given after the Chaitrapadya of the year, which is a Chandramana Ugadi day, a Hindu festival, by which date, normally the crops of the land would be harvested. It is the contention of the Counsel for the appellant that in the case of usufructuary mortgage the period of limitation commences only when the amount is tendered and the mortgagee refuses to redeem the property. In that view contended that the limitation would not commence unless and until the amount is tendered and refused by the mortgagee. I am unable to agree with the contention.