MUKH NARAIN SINGH Vs. RAMLOCHAN TIWARI

JUDGEMENT

(1.) This is an appeal by defendants first party. The predecessors-in-interest of defendants fourth party owned a fractional proprietary share in certain property.

(2.) In 1866 they executed a usufructuary mortgage of this share to Gopal Sahu and Ayodhya Prasad, now represented by defendants third party. The due date for repayment was May or June 1870. In 1890 defendants fourth party transferred 18 pies in the property to defendants first party and 6 pies to the plaintiffs and defendants second party. The mortgage was redeemed by defendants first party alone in 1903. The interest of defendants second party in the C pies share transferred to them and the plaintiffs by the defendants fourth party was conveyed by the defendants second party to the plaintiffs who thus became the owners of the 6 pies share in the equity of redemption. The original mortgage was for Rs. 1875. On 5 September 1930, the plaintiffs deposited in Court a sum of Rs. 447- 8-0 to the credit of defendants first party in the present suit, which was instituted on 4 September 1933. The plaintiffs seek to redeem their G pies share of the mortgage by proportionate payment of the mortgage debt. The only question which arises for decision in this appeal is the question of limitation. It has not been contended that Art. 148, Limitation Act, does not apply. The conflict between the parties is as to the date from which the limitation runs.

(3.) For a suit against a mortgagee of immovable pro-party to redeem the mortgage that article provides a period of 60 years from the date when the right to redeem accrues. The Court below held that the period in the present case runs from the date when the defendants first party redeemed the mortgage in 1905. On behalf of the defendants-appellants, it is contended that the period runs from the due date of the mortgage, that is to say, May or June 1870. If this contention be correct, this suit is barred by limitation as it was instituted more than 60 years from that date.