CHANDER Vs. PANNALAL

JUDGEMENT

(1.) This second appeal has been filed by the unsuccessful plaintiff whose suit for redemption of mortgage over the land in dispute was decreed by the trial court, the first appellate court having rejected the same on the ground of limitation.

(2.) As the appellant was unrepresented before us we have ourselves examined the record and have heard the arguments advanced by the learned counsel for the respondents. The first and foremost question involved for determination in this appeal is as regards the limitation. There is no controversy on the point that the ancestors of the appellant mortgaged the land in dispute with the ancestors of the defendants. The mortgage is alleged to have been created through a document executed on Sawan Sudi 7, Svt. l948, corresponding to 27.7.1891. The stipulation in the mortgage deed was that the money shall be paid in the following Baisakh (which will correspond to April or May, 1892 A. D.). The plaintiff, as can be gathered from the plaint, claimed that the period of limitation should commence from the date of the sanction of mutation. The trial court, though no distinct finding has been given on the point, held that the limitation period cannot commence from the date of the sanction of mutation, but from the date given in the document for the repayment of the amount i.e. from Baisakh following next Baisakh. It accordingly held the suit within limitation and granted a decree in favour of the appellant. The learned Additional Commissioner held that the limitation should commence from the date of the execution of the document and as, computed from this date, 60 years period prescribed in Art. 148 expired on 27.7.1951 the suit was held as being beyond limitation.

(3.) The view taken by the learned Additional Commissioner is clearly erroneous Art. 148 (as the suit was brought in the year 1951 it will be governed by this Article) lays down that a suit against a mortgagee to redeem or to recover possession of mortgaged immovable property shall be brought within 60 years from the time when the right to redeem or to recover possession accrues. The right of redemption has been defined in sec. 60 of the Transfer of Property Act as a right to require the mortgagee on payment of the mortgage money to do various things referred to in this section. Where the mortgage deed provides a period or a date for the payment of the mortgage money the mortgagors right to redeem the mortgage will arise only after the expiry of the period and not before inasmuch as before the expiry of such period the mortgage money would not be due in the sense that the mortgagee could not sue to recover it. If any authority be needed for this view it will be found in AIR 1957, Allahabad, 32 AIR 1943, Oudh 425. In the first case the mortgagor stipulated to redeem property in the month of Jeth not specifying any year. It was held that the stipulation is for the benefit of mortgagor and the right to redeem accrued on the first day of Jeth immediately following the date of mortgage. In the Oudh case it was simple mortgage for one year wherein it was provided that in case of default the mortgagee would take possession and appropriate the profits in lieu of interest. It was also provided that when the mortgage would thus become usufructuary the mortgagor would be entitled to redeem in Jeth of any year for in 10 years the mortgage became usufructuary on the default having been made. It was held that the right to redeem accrued in the first Jeth after the mortgage became usufructuary. By applying this principle to the present case it will be found that the mortgage was created, no doubt, on Sawan Sudi 7, but it was clearly agreed therein that the money shall be paid with interest at the rate of 25 dams per rupee on the following Baisakh Sudi 2 and if default be made therein then the mortgage would be usufructuary. Thus the commencing period of limitation in the case would not be the date of the execution but the date of payment, agreed in the document, i.e. Baisakh Sudi 2, Svt. 1949 or April -May, 1892 A. D. The suit was, therefore, well within limitation and the decision of the Additional Commissioner is clearly untenable.