JAGNA SANYASIAH Vs. MYCHERLA PEDA ATCHANNA NAIDU

JUDGEMENT

(1.) Defendants Nos. 3, 4, 13 and 14 are the appellants. The facts are somewhat complicated and in setting them out I shall, for the sake of brevity, describe the parties to old transactions, who are the ancestors of some of the parties to the, suit as if they were themselves parties to the suit. There was, first, a usufructuary mortgage of items Nos. 1 to 8 by defendants Nos. 1 and 2 to the plaintiff. Next, there were five usufructuary mortgages under Exhibits I to V executed in the years between 1880 and 1883 in favour of Srinodhu Appadu of items Nos. 9 to 16, the total sum due under these five usufructuary mortgages being Rs. 3,2000. Next, there was a simple mortgage (Exhibit A) in January 1886 for Rs. 6,000 made up of three items: (1) Rs. 3010 due under a simple debt bond of 1879 (Exhibit A-3); (2) Rs. 590 due under a promissory-note, and (3) Rs. 400 paid in case. It is on this last bond (Exhibit A) that the present suit for sale of the plaint properties, items Nos. 1 to 16, is brought.

(2.) The equity of redemption in half of items Nos. 1 to 8 is now vested in the 13 defendant and the equity of redemption in the other half in the 14 defendant, while the equity of redemption in items Nos. 9 to 16 invested in defendants Nos. 3 and 4 at the result of transactions which it is unnecessary to set out in detail.

(3.) The important and preliminary question in the case is whether the plaintiff's suit on this bond of 1886 is barred by limitation. One more fact might be stated, namely, that in 1915 defendants Nos. 3 and 4, in whom the equity of redemption in items Nos. 9 to 16 was vested paid Rs. 3,200 to the usufructuary mortgages of 1880 to 18.S3 (Exhibits I to V), The plaintiff's contention is that the date when the money became due to him under the simple mortgage- deed Exhibit A sued on is the date of, the redemption of items Nos. 9 to 16 from the ususfructuary mortgagee (i.e., 1915) and hence this suit is not barred. It is admitted that if his cause of action arose in 1886 itsel the suit would be barred as there are no acknowledgments of indebtedness after the year 1890, and as, admittedly, Art. 132 of the limitation Act applies. Hence the question for decision is, what is the date 6n which the amount is borrowed under Exhibit A became due according to the proper construction of its terms. Those terms are to the following effect: "We shall discharge the principal and interest of this document on the security of the 13 garces of land" (that is items Nos. 1 to 8) "usufructually mortgaged under the document of 1879 and also of the 15 graces of land usufructually mortgaged to Srinodhu Appadu" under (Exhibits I to V) i.e., the lands mortgaged as the second set, namely, items Nos. 9 to 16 to be security after discharging the debt due to Srinodhu Appadu and we shall pay up the hypothecation debt on the securities above set out and get back the hypothecation bond." That according to me is the effect of the language used in, Exhibit A the construction of which it may be conceded owing to its involved grammatical construction is not free from obscurity. The lower Court accepted the plaintiff's contention and held that the parties intended that the amount due under Exhibit A was to become due only when, at some future uncertain date, the mortgagors or their representatives-in-interest chose to redeem Srinodhu Appadu and that as Srinodhu Appadu was redeemed only in 1915 it was then that the debt due under Exhibit A became due. After hearing full arguments I am unable to agree with the lower Court on the construction put by it upon Exhibit A. The provision about Srinodhu Appadus usufructuary mortgages which occurs in the position which describes the second set of properties, items Nos. 9 to 16, given as additional security was, I think, intended to embody merely the undertaking given by the mortgagors to discharge those usufructuary mortgage-deeds, Exhibits I to V, so as to make the properties better security and not to postpone the date from which the cause of action for the plaintiff's enforcement of his right to recover money under Exhibit A was to arise. The re-demotion of Srinodhu Appadu's usufructuary mortgages would not be barred for at least sixty years from their respective dates and I am unable to believe that the hypothecatee under Exhibit A who had not only items Nos. 9 to 16 hypothecated to him subject to Srmodhu's mortgage but other properties, items Nos. 1 to 8, would have agreed to wait for sixty years and for the contingency of those properties 9 to 16 being redeemed to get back the Rs. 4,000 lent by him under Exhibit A with the enormous accumulation of the interest provided for under it. In my opinion, the reasonable construction of Exhibit A is that items Nos. 1 to 8 subject to the plaintiff's prior usufructuary mortgage and items Nos. 9 to 16 subject to Srinodhu's usufructuary mortgages were made security for the Rs. 4,000 borrowed under Exhibit A without a stipulation for any particular period for repayment of the amount borrowed. On this construction, therefore, the suit is barred and must be dismissed, reversing the decree of the lower Court.