(1.) A point of some importance is raised in this second appeal and the point is when should a mortgage debt be deemed to be barred by limitation for the purpose of making an application under the provisions of Section 4 of the Bombay Agricultural Debtors' Relief Act.
(2.) THE point arises in this way. 12 gunthas out of Survey No. 339 and 1 acre and 15 gunthas out of Survey No. 341 of Takali in District Kolhapur belonged to one Dattu Sakharam Patil, the father of plaintiffs 1 and 2, and he transferred the same to one Ananda Patil, the father of defendant No. 1, on 2-6-1917 under a registered deed as per Exh. 42 for a sum of Rs. 500/ -. The deed purported to be a conditional sale deed and contained a provision that the vendor would pay the principal amount of Rs. 500/- at any time after five years and before the expiry of 15 years from the date of the deed and would redeem and get back the lands. The lands were accordingly put in possession of the vendee and remained in his possession till 1958 when Dattu Sakharam died. The plaintiffs, who happen to be his sons, filed the suit for redemption in the Court below on 26-3-1959, alleging that the transfer evidenced by the conditional sale deed of 1917 was in fact a mortgage and they were entitled to redeem the lands even after the stipulated period of 15 years. They further alleged that they and their father Dattu Sakharam were both debtors having debts not exceeding Rs. 15,000/-and since an application for the adjustment of this mortgage debt was not made within the time prescribed by law, the debt evidenced by this mortgage was extinguished under Section 15 of the Bombay Agricultural Debtors' Relief Act and they were, therefore, entitled to redeem the lands without making any payment to the defendants.
(3.) THE defendants resisted the suit and denied that the transaction evidenced by the deed was in the nature of a mortgage. They further denied that the plaintiffs and their father were debtors under the Act and the debt evidenced by the alleged mortgage was extinguished for want of an application made under Section 4 of the Bombay Agricultural Debtors' Relief Act. Their final contention was that in any case they had acquired title to the lands by adverse possession.