AHAMMAD Vs. RUGMANI AMMA

JUDGEMENT

(1.) THE defendant is the appellant and the only point that arises is as to whether Ext. P2 mortgage is barred by limitation, the suit itself being one for recovery of the mortgage money due under to mortgages, exts. P1 and P2, executed in favour of the plaintiff by the defendant over the same property. Ext. P1 is in terms a usufructuary mortgage and since there has been perception of profits, S. 19 Explanation A operates because the receipt of rent has to be deemed to be a payment, and on this basis it is agreed that the claim under Ext. P1 is not barred. However, the main dispute is as to whether ext. P2, which is described as a ]pdhbv]m[mcw executed on 161949 is barred since the date of the institution of the suit viz. , 30 11964, is beyond 12 years. Art. 62 of the Limitation Act prescribes a period of 12 years to enforce payment of money secured by a mortgage, the terminus a quo being "when the money sued for becomes due". In the present case, the] document recites thus: THE argument of the counsel for the appellant is simple. Ext. PI virtually provides for payment of the mortgage money on demand and, therefore, the technical expression'on demand', which means at once without any demand, should be given that construction, and limitation must be deemed to commence from the date of Ext. P1. On this argument, there is no doubt that the time prescribed in Art. 62 has elapsed. THE courts below, however, did not accept this plea because of the provision for consolidation admittedly contained in Ext. P2. Relying on a ruling reported in 1961 KLT. 52 the learned subordinate judge held that a consolidation of the two mortgages under Exts. P1 and P2 had to be made as provided for in S. 67a of the T. P. Act and that so long as the earlier mortgage under Ext. P1 had not become a stale claim the later mortgage also remains alive. In this court, counsel for the respondent has challenged what has found favour with the lower courts.

(2.) BOTH sides agree that since Ext. P2 is a puravaipa and since there is an express provision for consolidation, the mortgagor is bound to pay the mortgage money under both the transactions together. Thus, we cannot read these two transactions as independent of each other and the ruling reported in AIR 1927 Madras 417 cannot come to the rescue of the defendant. In 1961 KLT. 52 Mr. Justice raman Nayar, as he then was, took the view that since the terms of the document contained an express recital that on demand the mortgagor would pay the amounts due under both the documents together and obtain a release of the property it amounted to a contract to the contrary, excluding the operation of S. 61 of the transfer of Property Act and giving the mortgagee the right of consolidation. The mortgage money has, therefore, to be regarded as the consolidated amount. According to the learned judge "the effect of the transaction is to increase the principal of the original mortgage by the amount subsequently advanced". If the mortgage, money under Ext. P1 is augmented by adding the amount due under Ext P2, so long as Ext. P1 mortgage is not barred, the whole claim remains alive. For this reason, I am inclined to uphold the decision of, the lower appellate court.

(3.) I dismiss the appeal, but in the circumstances, parties will bear their costs.