ABDULLA HAJI Vs. RAMAKRISHNA IYER

JUDGEMENT

(1.) IN a kuri started in the year 1089 by the tarwad of defendants 1 to 38, the 63rd defendant who was the predecessor-in-interest of the appellant, was a subscriber. He had prized half a ticket and had been paid the amount; with respect to 3/4 of a ticket which he held and prized in addition, he had to be paid the amount. He executed a security bond, Ext. XXII, under which the foreman settled its liability to him at Rs. 1375/-9 as - 8ps. It then leased item 2 of the properties in the suit by Ext. V in the year 1105, providing that out of its income, 2161/2 parahs of paddy may be appropriated by him annually towards interest on the amount so settled. The lease was renewed by Ext. VII in the year 1115, though the annual interest was reduced to 165 parahs of paddy. The 63rd defendant then sued in O. S. 32 of 1118 to enforce his claim for the principal, by the sale of item 2 and obtained decree Ext. X. The plaintiffs in the suit out of which this appeal arises, who are two other subscribers, filed O. S. 7 of 1118 for the administration of the assets of the kuri. By the preliminary decree in this suit, which was passed on the 18th meenom,1125, it was provided, that those claims in the kuri against the foreman which were alive on that date may be proved but no others, and the amounts of such claims may be realised by the sale of the kuri assets. So far as the appellant was concerned, the lower court has held that his claim was barred by limitation on the date of the preliminary decree and has refused to entertain it. This appeal is directed against that part of the decree.

(2.) IN the lower court, the appellant relied on an alleged acknowledgment of liability in a deposition of the first defendant, which was however found to be no valid acknowledgment. IN this court, his learned counsel relied on S. 21 (2) of the Travancore Limitation Act, 1100, under which the case falls to be decided, which corresponds to S. 20 (2) of the INdian Act. That section is in these terms: "where mortgage land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment for the purpose of sub-section (1)". Counsel contended, that the appellant's predecessor was a mortgagee by virtue of Ext. II, which is the bond executed by the foreman to secure eventual kuri liabilities and also by virtue of Ext. V or Ext. VII, which, though in terms a lease, was contended to be a mortgage. The latter contention is without substance, for although by Exts. V and VII a relationship of debtor and creditor as settled by Ext. XXII was recognised, the property was not secured for the debt. The reliance by learned counsel in Kali Lakshmi v. Kali Lakshmi 13 T. L. R. 70 and Mathura Singh v. Palakdhari Rai AIR. 1940 Patna 512 must be considered to be misplaced, in view of the rule accepted by the supreme Court in Ramdhan Puri v. Bankey Bihari Saran AIR. 1958 SC. 941 that "once you get a debt with security of land for its redemption, then the arrangement is a mortgage by whatever name it is called". This essential element of land being made security for payment of the debt, is lacking in Ext. V and Ext. VII, which have but made a provision for the appropriation of a part of the profits of the property towards interest on the amount outstanding. The appellant cannot therefore be considered to be a mortgagee by virtue of Ext. V or Ext. VII.

(3.) MY attention was invited by learned counsel for the respondents to the observations of the Bombay High Court in Manikchand bharmappa v. Rachappa Virsangappa AIR. 1952 Bombay 226. The mortgage though a simple one, provided, that the mortgagee shall be in possession of the mortgaged property and appropriate the income towards interest on the mortgage amount. Counsel relied on the following observations in the judgment: "therefore, if the mortgagee is in possession by reason of the mortgage deed and if in that capacity he receives any rent or produce from the mortgaged property, then the receipt of the rent is deemed to be a payment for the purpose of sub-section (1 ). " Earlier in the same paragraph occurs the following observations with reference to S. 20 (2): "now in our opinion, the expression 'where mortgaged land is in the possession of the mortgagee does not merely apply to cases where the mortgagee is in possession under a usufructuary mortgage; it applies to all cases where the mortgagee is in possession in his capacity as the mortgagee and under the terms of the mortgage". It is apparent, that in making the observations relied on here, the court was concerned with extending the application of the provision beyond the domain of usufructuary mortgages so as to take in a mortgage of the kind before it. The observations have therefore to be read and understood in an inclusive sense and not as excluding other cases in which a mortgagee is in possession of the mortgaged property not in pursuance of the terms of the mortgage, but in some other manner. The precise point arising here did not arise in that case, and therefore it was not necessary to refer to the decided cases referred to above. As a result of the above discussion, I come to the conclusion that S. 21 (2) of the Travancore Act applies. If so, it was not disputed, that the possession of the appellant's predecessor was sufficient to save the appellant's claim from the bar of limitation.