SANKARAN PARAMESWARAN NAMBOORI Vs. VEERAMANI PATTAR NARAYANA PATTAR

JUDGEMENT

(1.) This appeal is by the plaintiff in a suit for redemption of a usufructuary mortgage which was allowed by the trial court hut dismissed by the lower appellate court in appeal by the defendants 1 and 5.

(2.) The plaint whole property appertained to the plaintiff's Illom and was mortgaged with possession under Ext. A dated 24-9-1061 in favour of Veeramony Pattar, deceased. Veeramony Pattar left three sons Narayana Pattar, the 1st defendant, Subramonia Iyer, the ancestor of defendants 2 to 4 and Krishna Iyer, deceased, who partitioned the property among themselves as if it belonged to them absolutely in jcnm and took 1/3 each. This was in 1074 and. 1077. Subsequently Krishna Iyer accepted Ext. B mortgage of 1097 from the mortgagor Illom with reference to his 1/3 interest and we are accordingly not concerned with it. Defendants 2 to 4 in their capacity as heirs of Subramonia Iyer conveyed a portion of their 1/3 interest in favour of the 5th defendant'under Ext. III transfer deed of 1110, and retained in their own hands, the balance left. Neither the 1st defendant nor the defendants 2 to 5 were willing to acknowledge the Illom's title or take fresh mortgage in respect of their respective 1/3 shares. So this suit was laid on 17-1-1122 for redemption of the 2/3d mortgage interest in their hands. Soon after suit, however, defendants 2 to 4 attorned to the mortgagor Illom as regards their balance and took Ext. E mortgage of 1122. The suit was thereafter confined to the defendants 1 and 5 and the redemption of their portion of the property. These defendants 1 and 5 opposed redemption "mainly on two grounds viz., that the mortgage holding did not belong to the plaintiff's Illom but was the absolute property of their predecessor-in-interest Veeramony Pattar and was so being held by them. They denied that Ext. A mortgage deed was ever accepted by Veeramony Pattar or had come into effect and this notwithstanding the admissions of their co-sharers. They set up the further plea that the suit was in any event barred by limitation and adverse possession. Both the courts below found in favour of title of the plaintiffs Illom and the validity and binding nature of Ext. A mortgage. But while the trial Court found the issue as to bar of Limitation in favour of the plaintiff's Illom, and so allowed the suit, the lower appellate court found to the contrary, and dismissed the suit. Hence this second appeal by the plaintiff, as abovesaid and the main question with which we are concerned, is that of limitation.

(3.) Now, reckoning the period of limitation of 60 years under the applicable Article 137 of the Cochin Limitation Act, XII of 1112, from 24-9-1061, the date of Ext. A mortgage, there can be no doubt that this suit filed on 17-1-1122 is beyond time. The plaintiff, therefore, averred in the plaint that the cause of action for the suit arose also on 16-1-1082 viz., the date of registration of the mortgage deed and further that the date of expiry of 60 years therefrom viz., 16-1-1122 being a. Sunday ought to be excluded in computing the limitation. This aspect as to date of the registration forming the terminus a quo was sought to be supported in two different ways before the courts below and in both ways before me. The first and indeed that which found support with the trial court was put this way. The mortgagor's admission of execution before the registering authority, gave a fresh starting point of limitation, as from the date of registration for a suit by the mortgagee for foreclosure or sale. Foreclosure or sale and redemption were correlative rights. So the mortgagor must also have in turn, the benefit of that same starting point even so far as his redemption suit was concerned. The argument besides being accepted by the learned Munsiff was stretched a bit further by him. For, he was willing to hold that the grant of Ext. B fresh mortgage in 1097, regarding 1/3 of the property in favour of Krishna Iyer by the mortgagor, would constitute a still later admission and therefore another starting point for purpose of this suit. This line of argument was however given up before the lower appellate court and in my opinion quite properly. For, on principle a person cannot be allowed to have an extended time for enforcement of his rights as against another merely on the strength of his own acknowledgment of liability in respect of correlative right which might give an extended time to that other. The question arose before the Privy Council in Mahammad Akbar Khan v. Mt. Motai, AIR 1948 PC 36 (A) in connection with the operation, of Section 20 (i) of the Limitation Act (1908), under which the payment of interest on a debt or legacy or of the receipt of the rent or produce of the land by a mortgagee in possession gave fresh period of limitation. The argument was that the mortgaged contract was one, that the rights of mortgagor and mortgagee were reciprocal and correlative, and that the Legislature in extending the time within which the mortgagee may sue for his debt must have intended at the same time to extend the period in which the mortgagor can redeem the property, since it would be anomalous to leave the right of the mortgagee to recover his debt alive, after his obligation to be redeemed is dead. Sir John Beaumont, delivering the judgment of the Board, referred first to Anwar Hussain v. Lehmir Khan, ILR 26 All 167 (B), Bhagwan Ganpati v. Madhav Shankar, ILR 46 Bom 1000: (AIR 1922 Bom 356) (C) and Piroze Khan v. Kanhaiya Ram, AIR 1924 Lah 484 (D), which had rejected this argument and then continued: