LAKHMIR SINGH Vs. SUCHA SINGH

JUDGEMENT

(1.) One Bhagwan Singh had mortgaged the land in dispute on September 18, 1946 in favour of Sucha Singh and others for a sum of Rs. 2000/-. He died on May 9, 1964 leaving behind a Will in favour of Lakhmir Singh and others, the present plaintiffs, the present suit for possession by redemption was filed by Lakhmir Singh and others on May 25, 1981. During this period, there was other litigation. The Will executed by Bhagwan Singh was under challenge and ultimately the High Court on November 26, 1975 adjudicated, upon the validity of the Will in favour of Lakhmir Singh and others. It was thereafter that the present suit was filed by Lakhmir Singh and others. The trial Court decreed the suit holding to be within time excluding the time spent for obtaining adjudication on the basis of the Will. The lower appellate Court had set aside the said judgment and decree holding the suit to be barred by time and that the provisions under Section 16 of the Limitation Act were not attracted to the case in hand. This is a second appeal filed by Lakhmir Singh and others. After notice of motion having been issued, the case has been argued by the counsel for the parties.

(2.) Section 16(1) and (3) of the Limitation Act read as under :-

(3.) On perusal of Section 16 of the Limitation Act as reproduced above, it is clear that the same cannot be applied on the facts of the case in hand. There was no time fixed for the mortgage deed after which the same could be redeemed. Therefore any time after its execution the mortgage could be redeemed meaning thereby that Bhagwan Singh, the mortgagor during his life time could have redeemed the mortgage. First part of Section 16(1) of the Limitation Act is therefore, is not attracted to the case in hand, as right to sue had accrued before he died. The second part is also not attracted to the case in hand on that very ground, that is, on his death no right to redeem had accrued rather it had already accrued. His legal representatives or the persons in whose favour he had executed the Will could have immediately on the death of Bhagwan Singh filed the suit for redemption of the land in dispute of course within general period of limitation, that is 30 years. Furthermore, in view of Section 16 (3) of the Limitation Act, Section