AMMAL NADACHI Vs. KOPILLAN NADAR

JUDGEMENT

(1.) The 2nd defendant is the appellant. Deceased Kochukutty Nadar whose heirs are defendants 1 to 3 had executed an otti deed Ext. A dated 26.1.1106 to the plaintiff, mortgaging with possession the property described in the plaint schedule. He purported to deal with the property as owner thereof, whereas he himself was only a mortgagee. The owner of the property obtained a decree in O.S. No. 410 of 1115 for redemption of a mortgage in favour of Kochukutty Nadar and took delivery of the property on 28.4.1117. The plaintiff allowed the decree holder to recover possession of the property without depositing any amount. The plaintiff therefore instituted the suit on 7.2.1125 for recovery of the mortgage amount. The suit was resisted on the ground of limitation. The Trial Court dismissed the suit on this ground but on appeal the decree was reversed and the plaintiff was given a decree as prayed for.

(2.) The only question for decision in this second appeal is whether the suit is barred by limitation. The plaintiff relies on S.21 and Art.119 of the Travancore Limitation Act corresponding to S.20 and Art.132 of the Indian Limitation Act. According to S.21(2) the date from which limitation would begin to run is 28.4.1117 when the defendant was dispossessed in execution in O.S. 410 of 1115, as he was receiving the profits of the properties till that date. This position was not seriously disputed. The main controversy turned on the question as to which Article of the Limitation Act was applicable to the case. According to the appellant it is not Art.119 but Art.104 of the Limitation Act (Travancore) which provides a period of six years for a suit to recover compensation for the breach of a contract in writing registered.

(3.) The distinction between Art.119 of the Travancore Act and Art.132 of the Indian Act has been pointed out in various decisions of the Travancore High Court the earliest of which is Sankaran Aiyappan v. Lekshmi Karthyayani (11 TLR 74). Art.119 applies to a suit "to recover money or paddy due under a hypothecation bond or to enforce payment of money or any customary dues charged upon immovable property". Art.132 refers to a suit "to enforce payment of money charged upon immovable property". If the transaction in question is a hypothecation bond as contemplated in Art.119 there is no doubt that the suit is within time as it is filed within twelve years of 28.4.1117. Ext. A is a deed of otti which is neither a simple mortgage nor a usufructuary mortgage as defined in the Transfer of Property Act. It properly comes under the category of anomalous mortgages. While usufructuary mortgages do not impose a personal liability on the mortgagee, the customary law of Travancore is that a person who borrows money on otti is personally liable for the amount as in the case of a hypothecation bond. In other words, all the elements of a hypothecation bond are present in an otti transaction and in addition possession of the property secured is given to the mortgagee so that he may take the profits in lieu of interest. In view of the difference between the two Articles in the Travancore and Indian Acts the decisions under the latter Act on Art.132 are not helpful in deciding this question. If Art.119 applied, the period of limitation for personal relief is the same as that against the property secured. The facts in Sankaran Aiyappan v. Lekshmi Karthyayani were similar to the facts of this case. In considering Art.109 of the Travancore Limitation Act II of 1062 corresponding to Art.119 of the Travancore Act VI of 1100 and Art.132 of the Indian Act Their Lordships held: