PEERUKANNU SHAHUL HAMEED Vs. OSANARU PILLAI AHAMMED KANNU

JUDGEMENT

(1.) THE suit filed on the strength of Ext. F, a hypothecation bond dated 12-3-1923, for redemption of 2 earlier mortgages dated 29-4-1909 and 11-2-1910 of the same properties and copies of which are Exts. XI and XII, was dismissed by both the lower Courts and it is from these decrees that the present Second Appeal has been filed by the plaintiffs.

(2.) THE transactions took place in the erstwhile Travancore State. Under Article 119 of the Travancore Limitation Act, 6 of 1100 (M. E.), the appellants had 12 years' time to recover through suit the money due under Ext. F. That was not availed of by them. According to the learned Advocate General who appeared for them Ext. F was a mortgage by conditional sale, ft had worked itself out as a sale and therefore they as owners of the properties had a right to redeem the earlier mortgages even though the right to claim the amount due under Ext. F had become barred by limitation. He argued that even if Ext. F had become barred under the Limitation Act that bar related only to recovery of money due under Ext. F and not to the other rights including the right of redemption of the earlier mortgages that the appellants had under Ext. F, that the right of redemption could be lost only after the expiry of the period provided for redemption in the Limitation act, that that period not having elapsed on the date of suit they were competent in the present suit to redeem the earlier mortgages for that reason also and that the suit was not barred by limitation. These in brief were the points pressed by him when this appeal was heard.

(3.) WE must now deal with the question whether the appellants can be allowed to redeem the earlier mortgages on the ground that Ext. F was a mortgage by conditional sale and that it had worked itself out as a sale. The document is styled as a ''sthreedhana Eedadharam". It was executed for 14,000 Fanams by-one meeran Pillai in favour of his daughter Fathummal and her husband Peerukannu. The consideration for the document was the Stridhanam amount agreed to be paid by Meeran Pillai to Pathummal and Peerukannu at the time of their marriage. It is stated in the document that it was being executed as Meeran Pillai was not in a position to pay the amount ready cash. He agreed to pay the hypothecation amount within a year. If it was not paid within that time he further agreed that pathummal may enjoy the properties as full owner. According to the learned advocate General as Meeran Pillai did not pay the hypothecation amount within the time stipulated in Ext. F the transaction had become a sale of the properties.