GOVINDAN NAIR Vs. ABRAHAM

JUDGEMENT

(1.) THIS Second Appeal was referred to the Division Bench by Justice Chettur Sankaran Nair by Order of Reference dated 20. 7. 1992 doubting the correctness of the judgment in Kunjamma v. Bhageerathy Amma (1990 (1) KLT 504) in so far as it holds that the amount found due in the preliminary decree should be deposited within 30 years from the date on which the mortgage money has become due as right of redemption of mortgage is permanently lost by that time. According to the above judgment, in view of Art. 61 of the Limitation Act, right to redeem mortgage is lost after 30 years from the date on which the mortgage money has become due. After the above limitation period, relationship of mortgagor or mortgagee is not subsisting as Art. 61 of the Limitation Act prescribes a period of 30 years to redeem or recover possession of the immovable property and the period of Limitation Act is not extended by filing of a suit or passing of a preliminary decree within that period. The Court observed as follows: "art. 61 of the Limitation Act prescribes a period of 30 years to redeem or recover possession of immovable property mortgaged and time begins to run when the right to redeem or recover possession accrues. The period of limitation for foreclosure by a mortgagee is also 30 years and the starting point of limitation is the same. The deposit can be made by the mortgagor so long as the relationship of mortgagor and mortgagee subsists. It cannot be said that the relationship subsists even after the expiry of the period of limitation prescribed under Art. 61 of the Limitation Act. The period of limitation is not in any way extended by the passing of the preliminary decree. The right of the mortgagee to get a final decree debarring the plaintiff from all right to redeem the property will also come to an end on the expiry of 30 years from the date on which the mortgage money has become due. The mortgagor cannot, therefore, wait for years and years and then make a deposit and file an application for a final decree. In other words, the deposit of the amount found due in the preliminary decree has to be made before the date fixed in the preliminary decree or within the period of limitation prescribed in Art. 61 of the Limitation Act, viz. , within 30 years from the date on which the mortgage money has become due. " We also note that a similar reference was made by Justice r. Bhaskaran in S. A. No. 215/90.

(2.) WE may first answer the referred question before going to the other questions of law raised in this appeal. In this case, facts are not disputed. Property was mortgaged on 27. 5. 1122 (ME) (11. 1. 1947) for a period of 12 years. The period expired on 11. 1. 1959. Contention based on the observation of the learned Single Judge in Kunjamma's case (supra) is that since the mortgage money is not deposited before 11. 1. 1989, the right to redeem mortgage money is extinguished by operation of Art. 61 (a) of the Limitation Act. (For answers to reference, we are now not referring the contention raised under O. XXXIV R. 7 of the Code of Civil Procedure with regard to deposit of money after passing of preliminary decree. ). Admittedly, mortgage amount of Rs. 600/- was deposited only on 19. 1. 1990, after expiry of 30 years. Hence, the contention is that notwithstanding the filing of suit within 30 years of the time fixed for redemption of mortgage or passing of a preliminary decree, in view of non-payment of mortgage money within 30 years from the date from which the mortgage money has become due, right to redeem mortgage is extinguished.

(3.) IN Hamzabi & Ors. v. Syed Karimuddin & Ors. , (2001) 1 SCC 414, the Supreme Court held as follows: "2. The right of the mortgagor to redeem had its origin as an equitable principle for giving relief against forfeiture even after the mortgagor defaulted in making payment under the mortgage deed. It is a right which has been jealously guarded over the years by courts. The maxim of "once a mortgage always a mortgage" and the avoidance of provisions obstructing redemption as "clogs on redemption" are expressions of this judicial protection. (See Pomal Kanji Govindji v. Vrajlal Karsandas purohit, (1989) 1 SCC 458, in this context ). As far as this country is concerned, the right is statutorily recognised in S. 60 of the Transfer of property Act. The section gives the mortgagor right to redeem the property at any time after the principal money has become due by tendering the mortgage money and claiming possession of the mortgaged property from the mortgagee. The only limit to this right is contained in the proviso to the section which reads: "provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a court. " However, under Art. 61 (a) of the Limitation Act, the suit for redemption has to be filed within 30 years. Therefore, on the expiry of 30 years, right of redemption will not be lost as held in Kunjamma's case (supra); but, suit to redeem mortgage cannot be filed after 30 years.