VIJAYKUMAR MOTILAL HIRAKHANWALA Vs. RAMPRASAD DAGDURAM

JUDGEMENT

(1.) [His Lordship after setting out the facts of the case and dealing with a point not material to this report, proceeded.] Then the second point raised by Mr. Gokhale was that the suit for foreclosure was misconceived when the transaction in suit evidenced only a usufructuary mortgage. It cannot be disputed that the present suit is a suit instituted only for foreclosure. The relief prayed for in the plaint is that if the mortgage amount is not paid as directed by the Court, the defendant should be ejected and plaintiff's possession confirmed and he be held entitled to apply for a final decree debarring the defendant from all rights to redeem the mortgaged property. It is also undisputed that an usufructuary mortgagee cannot institute a suit for foreclosure In view of the provisions of Section 67 of the Transfer of Property Act. But is the mortgage on which the suit is instituted an usufructuary mortgage as contended by Mr. Gokhale? We have been supplied with a copy of an official translation of the original mortgage -deed which is exh. PI on the record. We direct that the copy be taken on the records of the appeal. The relevant portions of the mortgage -deed may be set out herein below : - I Ramprasad son of Dagaduram... have mortgaged with possession with Tarabai Saheba wife of Motilal Saheb, the owner of the shop, 'Narayandas Chunilal Hirakhan' Jalna the whole of the ginning factory owned and possessed by me, known as 'Saraswati Gin'...under a possessory mortgage deed dated 5 -9 -1927 in consideration ofRs. 30,000.... It was agreed that the amount was to be paid by instalments upto 6 -9 -1932 and in the event of default a right of foreclosure was given to the aforesaid mortgagee according to the above mentioned deed. As the period of mortgage has expired and as executant could not make the full payment of the claim and that the below mentioned amounts of the claim of the aforesaid lady are due by the executant.... The sum of Rs. 17,351 -1 -6 in respect of interest on the mortgage amount from 14 -9 -1927 to 13 -12 -1934; the total sum being Rs. 47,351 -1 -6... In all a sum of Rs. 20,996 -1 -9 has been paid. Thus a sum of Rs. 26,354 -15 -9 and a sum of Rs. 6,195 -0 -3 in respect of other claim under the khata making in all an amount of Rs. 32,500 are due by the exacutant. The lady at the request of the executant has relinquished her claim under the mortgage (for) Rs. 7,000. Now, as regards the rest of the claim there remains due and payable by the executant a sum of Rs. 25,550... In lieu of the amount (Rs. 25,550)... the ginning factory is mortgaged with possession in favour of Tarabai Saheba. The mortgagee shall continue to remain in possession and occupation of the said factory as before... The payment of the amount of mortgage is to be made within the period of 9 years by instalments in the manner that annually Rs. 3,000 and the interest on the whole mortgage amount shall be paid, that the first instalment shall commence from 19 -12 -1935 and that in this way each year on the said date fixed, the instalment together with interest on the whole mortgage amount shall become payable, that the final instalment shall be of Rs. 1,550 together with the interest on the whole mortgage amount... In the event of non -payment of continuous or non -continuous five instalments as specified above the mortgagee shall be entitled to recover the entire mortgage amount and in whatever the amount of mortgage remains payable in consideration thereof the aforesaid factory shall be deemed to have been foreclosed in favour of the mortgagee and that the right of redemption of mortgage of the executant shall become extinguished... In the event of there being no profits by reason of the fact that the factory remains closed for any reason whatever or there being no 'joint' or that the same cannot be rented out or that the same cannot be run, then the executant shall be liable to pay the principal and the interest thereon from his personal property... Dated 13 -12 -1934 Sd. Ramprasad Dagaduram. Mr. Gokhale contends that the terms of the mortgage -deed contain all the essentials of an usufructuary mortgage except where the mortgage -deied contains a clause 'the aforesaid mortgage shall be deemed to have been foreclosed in favour of the mortgagee and the right of redemption of mortgage of the executant shall become extinguished' which according to Mr. Gokhale operates as a clog on the equity of redemption and must, therefore, be ignored. It is not possible to accept this contention. If the document is read as a whole it seems to us that it evidences a transaction of an anomalous mortgage the terms of which expressly confer a right of foreclosure upon the mortgagee. In our view, the learned trial Judge was not right when he held that the mortgage under consideration was no doubt an usufructuary mortgage as denned in Section 58 of the Transfer of Property Act. We have, therefore, no difficulty in holding that the present suit for foreclosure is perfectly tenable if it is not otherwise barred by time.

(2.) THE third point raised by Mr. Gokhale is that the present suit which is instituted on February 10, 1954, is barred by limitation The learned trial Judge held that Article 147 of the Limitation Act which prescribes a period of 60 years for instituting a suit by a mortgagee for foreclosure or sale applied to the present suit and that even assuming that Article 132 applied as was contended before him by the defendant, the suit would still be in time as it had been, instituted within 12 years from the date when the mortgage money became due. In the view of the learned Judge the period of limitation whether under Article 147 or under Article 132 started on the expiry of nine years as stipulated in the mortgage -deed.

(3.) ON . the date of the execution of the mortgage -deed and even on December 13, 1943, when according to the plaintiff his cause of action for the present suit arose, the Hyderabad Limitation Act was in force. Under Article 133 of that Act the period prescribed for instituting a suit for foreclosure was 30 years. Mr. Kotwal emphasises the distinction between the wording of the first column of Article 133 of the Hyderabad Limitation Act and that of Article 147 of the Indian Limitation Act. of 1908. In the former it is a suit for foreclosure only; while in the latter it is a suit for foreclosure or sale. In Vasudeva Mudaliar v. SrinivasaPillai it was held that Article 147 of the Indian Limitation Act was restricted to suits on mortgages when the mortgagee is entitled to either of the two remedies of foreclosure or sale in the alternative. Therefore, the article would apply only to an English, mortgage (as denned in the Transfer of Property Act before its amendment of 1929) in which alone 'the suit can be, and always is brought for 'foreclosure or sale' '. In the present case the mortgagee is not entitled to either of the two remedies of foreclosure or sale in the alternative and the suit is instituted only for foreclosure. It is, therefore, clear that Article 147 of the Limitation Act of 1908 does not apply to the present suit. Mr. Kotwal, however, says that it is Article 133 of the Hyderabad Limitation Act which referred to a suit for foreclosure only (and not to a suit for foreclosure or sale in the alternative) and which was in force at the time when the cause of action arose that is applicable to the present suit, and that the aforesaid decision of the Privy Council which construed the words of the first column of Article 147 cannot be relied upon in construing the words of the first column of Article 133 of the Hyderabad Limitation Act which are materially different from those of Article 147 of the Indian Limitation Act, 1908. The Hyderabad Limitation Act was repealed and the Indian Limitation Act, 1908, was extended to the State of Hyderabad by the Part B States (Laws) Act, (III of 1951) and it is not disputed that it was the Indian Limitation Act, 1908, which was in force on the day on which the present suit was filed. But Mr. Kotwal says that in view of the proviso to Section 6 of the Part B States (Laws) Act (III of 1951) the repeal of Hyderabad Limitation Act shall not affect any right acquired under that Act and any legal proceeding in respect of any such right may be instituted as if Part B States (Laws) Act (III of 1951) had not been passed. in other words, the contention is that the present suit, though instituted after the Part B States (Laws) Act (III of 1951) came into force, is still governed, for the purpose of limitation by the former Hyderabad Limitation Act. Proviso to Section 6 of the Part B States (Laws) Act (III of 1951) says Provided that the repeal shall not affect -... (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law sorepealed,... (d) any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability...as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced... as if this Act had not been passed. It is difficult to accept the contention of Mr. Kotwal made in this behalf. No right whatever was acquired by the mortgagee or his heir under the form Hyderabad Limitation Act in respect of which the present suit is filed. The light to obtain a decree for foreclosure accrued to the mortgagee under Section 67 of the Transfer of Property Act and under the terms of the mortgage -deed and not under the Limitation Act. It is well settled that an Act of Limitation being a law of procedure governs all actions and proceedings to which its provisions are applicable from the moment of its enactment except so far as its operation is expressly excluded. In Masjid Shahid Ganj Mosque v. SMromani Gurdwara Parbandhak Committee, Amritsar : (1940)42BOMLR1100 ,P.C., their Lordships of the Privy Council observed that the rules of limitation which apply to a suit are the rules in force at the date of institution of suit, limitation being a matter of procedure. The statute of limitation prescribes only a period of limitation and does not create any right in favour of any person or define or create a cause of action. In Hurrinath Chatterji v. 'Mohunt Mothoor Mohun Gosivami , their Lordships of the Privy Council observed that the intention of the law of limitation is not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right.