M RAMANATHA PILLAI Vs. K V ANNAMALAI CHETTIAR

JUDGEMENT

(1.) THE first defendant is the appellant. The suit out of which this appeal arises was laid by the first respondent as plaintiff for recovery of Rs. 365 due under an othi deed, dated 28th July 1943. This was executed by the appellant both on his own behalf and as guardian of his elder brother's sons, defendants 2 and 3, who were minors on the date of the othi deed. The sum claimed consisted of Rs. 200 principal and interest at 51/2 per cent, per annum from the date of the mortgage deed. Contentions were raised as regards the validity and binding character of the mortgage in regard to the share of defendants 2 and 3 and also on the question of the mortgage being a real transaction. I am not concerned with these questions in this appeal. But, a question of limitation was raised on the ground that since the mortgagee was entitled to possession of the mortgaged property and such possession was not delivered the suit ought to have been filed within twelve years from the date of the mortgage deed and not within twelve years from the date of the expiry of the three years period fixed in the mortgage deed for repayment of the mortgage amount. Both the lower Courts have negatived this contention. That is the only point arising for my consideration now.

(2.) THE facts are not in dispute. The date of the mortgage deed, Ex. A. 1, is 28th july 1943. The period fixed for repayment in the mortgage deed is three years. It was alleged that the mortgaged property was leased back to the mortgagor on the basis of a tenancy from year to year. But, at the end of the first year no rent was paid, nor possession of the property surrendered. Both the lower Courts proceeded on the assumption that this lease was not given effect to and consequently the mortgagee was not given possession of the property. The suit was filed on 29th july 1958. It would therefore be within time under Article 132 of the Limitation Act if the starting point for limitation was the end of three year period fixed in the mortgage deed for repayment of the mortgage money. But it would be barred by time if the mortgagee had exercised option under Section 68 (1) (d) of the Transfer of Property Act and brought the suit for the money due on the mortgage since possession was not given to him.

(3.) MR. Natesan, learned counsel for the appellant, raised two points. The first was that the provisions of Section 68 (1) (d) of the Transfer of Property Act (hereinafter called the Act) cast an obligation upon the mortgagee in this case to file a suit for the mortgage money within twelve years from the date of default of the mortgagor to give possession and consequently; the suit would be barred by limitation. The second contention was that even if this provision in the Act is regarded as a provision for the benefit of the mortgagee upon which she could base her cause of action as an alternative to the cause of action based upon the covenant in the mortgage deed for repayment of the mortgage money, still the original mortgagee in this case had exercised the option to avail herself of the remedy provided under section 68 (1) (d) of the Act by the notice Ex. A. 7, issued on 15th September 1944 and consequently she was not entitled to rely on the personal covenant to bring a suit within twelve years from the end of the three year period fixed in the mortgage deed for payment. If this argument is correct and an election was made by the mortgagee on 15th September 1944, the date of Ex. A. 7, the suit would be barred by faro because it was admittedly filed more than three years after the date of Ex. A. 7. The first respondent who filed the suit was an assignee of the mortgage from the mortgagee, but that fact does not enter into the merits of the question which I have to decide.