SIDRAMAYA NILKANTHAYASWAMI WANTMURIMATH Vs. DANAVA SHIDRAMAPPA DESHNUR

JUDGEMENT

(1.) THIS appeal has been referred to a Division Bench by Mr. Justice shah for the reason that it raises an important question of limitation. The question is whether the plaintiffs' right to recover the mortgage amount from the successor-in-title of the mortgagor is barred under Art. 132, Limitation Act. This point has been answered against the plaintiffs by the Courts below relying upon the judgment of Mr. Justice Lokur in -- 'dnyanoba Gangaram v. Dattoba Balappa', AIR 1947 Bom 152 (A ). When this appeal was argued before Mr. Justice Shah, it was urged before Him that the judgment of Mr. Justice Lokur should be reconsidered in view of the fact that it was apparently inconsistent with the decision of the Privy Council in -- 'lasa Din v. Gulab Kunwar', AIR 1932 PC 207 (BJ. That is why Mr. Justice Shah has sent this matter to a Division Bench for disposal.

(2.) THE facts on which the point of limitation arises can be very briefly stated at the outset. The property in suit originally belonged to one Shidra-mappa, who died on 31-12-1915. After his death the title to this property vested in Balappa, who was then a minor. Gurushiddawa, who was act ing as the 'de facto' guardian of Balappa and as such was managing his properties, executed the mortgage in suit on 12-10-1927, for Rs. 800. The amount for which the mortgage was executed represented a past debt due by Shidramappa in respect of the sari business which he was carrying on during his lifetime. The mortgage deed purported to be a possessory mortgage. It also contained a specific covenant to repay the mortgage amount within five years. In the present suit which was instituted by the plaintiffs on 30-8-1948, it was alleged that- the mort gagee had allowed the mortgagor to remain in possession as his tenant, that the tenancy continued until 12-10-1933, and so it was claimed that the present suit for possession of the mortgaged property was in time. In the alternative a claim to recover the mortgage amount was made. The defendants resisted both the claims on several grounds. It was urged by them that the mortgage was not for a legal necessity, nor for the benefit of the minor Balappa, that the lease alleged by the mortgagee had never been executed and that in fact the mortgagee had never obtained possession, that the claim for possession as well as the claim to recover the mortgage amount were barred by limitation. It has been held by both the Courts below that though the mortgage was for the benefit of the minor Balappa, the mortgagee's claim to recover possession was barred by limitation because the case of tenancy set up by him had not been proved. Both the Courts have also held that the mortgagee's claim to recover the mortgage amount was also barred under Article 132, Limitation Act. In the present appeal Mr. Datar for the appellants does not challenge the conclusion of the Courts below that the plaintiffs' suit for possession of the mortgaged properties is barred by time. He, however, contends that the Courts below were wrong in holding that the plaintiffs' claim to recover the mortgage amount was barred by time under Article 132, Limitation Act. That is how the only question which arises for decision in this appeal is whether the Courts below were right in dismissing the plaintiffs' claim to recover the mortgage amount on the ground that it is barred by time.

(3.) IN dealing with this question of limitation we have to bear in mind the fact that the mortgagee was entitled to obtain possession from the mortgagor and possession in fact had not been delivered to him. The contention of the defendants is that as soon as the mortgagee found that the mortgagor was committing a default in delivering possession of the mortgaged property to him, it was his right and his obligation to sue for the mortgage amount. This contention is raised on the strength of the provisions of Section 68 (1) (d), Transfer of Property Act. Section 68 provides for the right of the-mortgagee to sue for the mortgage money in certain cases. Section 68 (1) (d) deals with the case where the mortgagee is entitled to possession of the mortgaged property but the mortgagor fails to deliver the same to him, and it provides that in such a case the mortgagee has a right to sue for the mortgage money. The argument is that as soon as the provisions of Section 68 (1) (d) come into play, the mortgagee's right to sue for the mortgage money becomes his obligation and in that sense the amount due under the mortgage becomes immediately due. If this contention is right, limitation will start against the mortgagee in respect of his claim to recover the mortgage amount from the time that Section 68 (1) (d) comes into play. Article 132 allows twelve years' period to the mortgagee to enforce payment of money charged upon immovable property and it lays down that this period of twelve years begins to run when the money sued for becomes due. if it is held that by virtue of the provisions of Section 68 (1) (d) the money due under the suit mortgage immediately "becomes due", then limitation would start as soon as Section 68 (1) (d) comes into operation, and the present suit is clearly beyond twelve years thereafter. On the other hand, the plaintiffs' contention is that Section 68 (1) (d) primarily deals with cases of possessory mortgages which do not contain a personal covenant to pay, and the elfect of Section 68 (1) (d) in such cases is to clothe the mortgagee with the right to sue for the mortgage money in case the mortgagor commits a default in delivering possession of the mortgaged property to the mortgagee. It may be conceded that in the case of such a mortgage where there is no personal covenant to pay, the mortgagee would have to sue within 12 years from the time that his cause of action under Section 68 (1) (d) accrues to him. In other words, if in the mortgage bond with which we are concerned there had not been a specific personal covenant to pay, the suit filed by the mortgagee obviously beyond 12 years from the failure of the mortgagor to deliver possession to the mortgagee would have to be held to be barred by limitation.