VIDYA DATTA DYUNDI Vs. JAGMANDAR DAS

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by the plaintiffs for the redemption of a mortgage with possession in respect of a shop situate in erstwhile Tehri Garhwal State. The suit was filed on the 2nd of September, 1951, The plaintiffs' case was that they had mortgaged a shop in favour of Kabool Chand and Fateh Chand for a consideration of Rs. 1,600.00 on the 29th of August, 1931, and had put the mortgagees in possession over the same. It was alleged that the mort--gage was for a period of eight years and it was stipulated in the mortgage deed that the mortgagors would not redeem in the first four years and that after the expiry of four years they would be entitled to redeem the mortgage at any time. The plaintiffs sued for redemption but without depositing the amount due and alleged that they would pay the money found due on accounting.

(2.) THIS suit was contested by the defendants mainly on the ground that it was time barred. It was also asserted that the mortgagees had purchased the right of redemption on payment of Rs. 400 more and that the mortgagees had spent about Rs. 3,000 over the repairs of the shop in dispute and it was asserted that the suit was liable to be dismissed. Before the two courts below the only question which was mooted was one of limitation. Both the Courts have held that the suit was barred by limitation having been filed more than 11 years after the date of the accrual of the cause of action. The plaintiffs have come up in appeal to this Court and the learned counsel for the appellants has raised two points for the consideration of this Court. It was firstly contended that the right to redeem accrued on the expiry of eight years and not four years as held by the courts below, and before the expiry of the period of limitation, the State of Tehri Garhwal was merged in the State of: Uttar Pradesh and the Indian Limitation Act applied with the result that the plaintiffs could redeem the property within 60 years from the date of the accrual of the right of redemption.

(3.) THE above shows that a suitor could institute a suit for redemption within 11 years of the accrual of the right of redemption. In the present case, the mortgage in dispute was executed on the 29th of August, 1931 payable in 8 years and there was a definite stipulation in the document that for the first four years the mortgagors could not redeem the mortgage. Thereafter they were permitted to redeem the property on payment of the mortgage amount due. The terms of the mortgage clearly show that the right to redeem accrued to the mortgagors just after the expiry of four years i. e., the mortgagors could redeem the property any time after the 29th of August, 1935 with the result that the time began to run from this date. A suit for redemption could be filed within 11 years of this date upto the 29th of August 1946. The present suit was instituted on the 2nd of September, 1951 much beyond the period of limitation and was clearly barred by time as held by the two courts below. The contention of the learned counsel for the appellants that the right given to the mortgagors to redeem after four years was only for the benefit of the mortgagors and the right to redeem accrued only after the expiry of eight years does not appeal to me. Learned counsel for the appellants has supported his submission by relying on the cases of Lasa Din v. Mst. Gulab Kunwar, AIR 1932 PC 207, Swayamber Singh v. Ghasite Ram, AIR 1952 All 479, Harbans Narain Singh v. Ramdhari Mahton, AIR 1960 Pat 51 and Shiam Lal v. Jagdamba Prasad, 25 All LJ 1051= (AIR 1928 All 131). I have looked into the cases cited by the learned counsel but I find that the principle of law laid down in those cases cannot be applied to the facts of the present case. AIR 1932 PC 207 (Supra) and AIR 1952 All 479 (supra) are the cases of instalment bonds wherein the debtor was allowed to pay within a certain period by instalments but there was a clause that in default of certain instalments the creditor was entitled to realise the entire amount. It was held that the right given to the mortgagee was for the benefit of the mortgagee and this benefit could be waived by him. These cases have interpreted Articles 75 and 132 of the Limitation Act and are distinguishable. AIR 1960 Pat 51 (Supra) deals with Article 148 of the Limitation Act and it held that 60 years' rule of limitation starts from the date when the right to redeem accrued. I do not think that this case is at all helpful to the appellants. In 25 All LJ 1051 (supra) which is equivalent to AIR 1928 A13 131, it was held as follows:--