ITTYCHERIA Vs. VARGHESE

JUDGEMENT

(1.) This Second Appeal by defendants 1 and 2, is directed against the decree of the Additional District Judge allowing the suit for the realisation of Rs. 300/- alleged to have been advanced by the first plaintiff on a usufructuary mortgage Ext. I dated the 21st Medom, 1123, in reversal of the decree of the Munsiff dismissing the suit. The mortgage was for a consideration of Rs. 3000/- of which Rs. 100/- was recited as having been paid in cash, Rs. 200/- was reserved for payment to Pw. 1 and the balance of Rs. 2700 was reserved for payment to the second defendant on a receipt to be passed by defendants 1 and 2. It was the case of the plaintiffs, that the sum of Rs. 300/- covered by the first two recitals was paid, and that the balance was not paid because the first plaintiff was not put in possession of the property. The first plaintiff assigned his rights to the second plaintiff. The second defendant contended, that there was no payment whatever under Ext. I, and that pursuant to a settlement arrived at later between the parties, the original mortgage deed had been returned to her which was produced at the trial by her; she also pleaded bar by limitation.

(2.) The first question for decision is whether the sum of Rs. 300/- was paid by the first plaintiff as contended. The payment of Rs. 100/- in cash was recited in Ext. I. As for Rs. 200/-, Pw. 1 admitted having received the amount and passed the receipt Ext. B to the first plaintiff. The suggestion of the second defendant was, that there had been no payment to Pw. 1 and that Ext. B was brought into existence afterwards with the connivance of Pw. 1. There is no conceivable reason why Pw. 1 should have done so. There is a clinching circumstance appearing from Ext. D, the lawyers notice on behalf of defendants 1 and 2 issued to the first plaintiff on the 22nd Edavom, 1122, in which he claimed only the sum of Rs. 2700/- and not even the sum of Rs. 100/-, which according to them was due to them. In Ext. II the reply, there was an assertion, though in general terms, of payment under the other recitals, and an explanation for the non payment of Rs. 2700/-. Ext. III was on the 19th Mithunam 1123. Defendants 1 and 2 did not afterwards renew their claim for payment of Rs. 2700/-. I consider that on this evidence the case of the plaintiff can be taken to be proved. The Munsiff failed to take note of this and embarked upon a consideration as to whether Ext. B was really genuine or not. It is too much to contend, that there was no debt owing to Pw. 1, in the face of the recital in Ext. A. Even the witnesses examined by the defendants, especially Dws. 2, 3 and 4 were not relied on by the Munsiff. The testimony of Dw. 1 did not advance the case of the defendants, for he gave only negative evidence of not having witnessed any payment on the date of Ext. I. Nevertheless he said, when specifically questioned about the payment to Pw. 1, that he heard some talk there about it. I am satisfied that the plaintiffs have proved their case that the sum of Rs. 300/- was advanced to defendants 1 and 2.

(3.) The plea of limitation is equally unsustainable. The claim was for money advanced on a usufructuary mortgage in which the mortgagors did not put the mortgagee in possession of the property. Under S.68(1)(d) of the Transfer of Property Act, the mortgagee has a right to sue for the money advanced in such circumstances. The liability of the mortgagor is one which arises under S.68 of the Transfer of Property Act, and considered as arising under a covenant implied by law as incidental to the mortgage transaction, Art.116 of the Indian Limitation Act would apply. Untchaman v. Ahmed Kutti Kayi ILR 21 Madras 242 at p. 243. In a somewhat similar case reported in Bishan Singh v. Dadna AIR 1916 Lahore 312 the plaintiff sued for recovery of money advanced by him on a registered mortgage deed, under which the defendant did not put the plaintiff in possession of the property as undertaken, as the property was already in the possession of a prior mortgagee. In such circumstances the court held that the plaintiffs claim fell within Art.116 of the Indian Limitation Act. Learned counsel for defendants 1 and 2 relied on Art.97 of the Indian Limitation Act, which refers to a suit for money paid upon an existing consideration which afterwards fails. I find difficulty in accepting the position that the sum of Rs. 300/- was paid upon an existing consideration. It was advanced not on the strength of a mere promise to execute a mortgage deed as was contended, but was advanced as consideration for the mortgage with possession. The suit is not barred.