VITHOBA MAHIPATI DHABADE Vs. BALKRISHNA SAKHARAM KULKARNI MINOR BY HIS GUARDIAN KHANDO GOVIND KULKARNI

JUDGEMENT

(1.) The plaintiffs sued to recover Rs. 625-9-0 from the property of the deceased father of the defendant, and from the defendant personally, alleging that the defendant's father Sakharam mortgaged to the plaintiffs deceased father Mahipati Kulkarni-Watan land for Rs. 460 on the 21 August 1897; and that the plaintiffs father, and after his death the plaintiffs, had been in possession of the land until 1914 when the defendant dispossessed them through the Revenue authorities under the Watan Act.

(2.) The suit was dismissed by the trial Court on the ground that it was barred by limitation. But it is admitted now that the trial Judge had not the materials before him for ascertaining the real date of the death of the defendant's father. He considered that the defendant's father had died in 1908, and as the suit was filed in 1917, it was clearly barred. In appeal it was admitted after the production of further evidence that the defendant's father died on the 24th February 1912. The reason, therefore, for the judgment of the trial Court failed. But the learned appellate Judge dismissed the appeal on another ground, namely, that the agreement in the plaint mortgage was void under Section 5 of the Watan Act. There, I think, with due respect, the learned Judge was wrong. There is nothing to prevent a Watandar when mortgaging vatan property, although the mortgage admittedly would not be effective beyond the life-time of the Watandar-mortgagor in ordinary circumstances, from personally covenanting to pay the mortgage amount. In the plaint mortgage, which was a mortgage with possession in lieu of interest for a period of ten years, the mortgagor covenanted to pay the principal at the stipulated time and get the land released. He further covenanted that if the aforesaid land before the expiry of the stipulated period, or any time thereafter, passed out of the mortgagee's possession on one cause or another the mortgagor should be personally liable to pay the principal together with the interest at twelve per cent, per annum from the date the mortgagee was deprived of the possession.

(3.) Really the only question is, from what date limitation runs against the mortgagee on that covenant. He has been dispossessed because the mortgagor-Watandar died. I think in the first instance limitation would run from the expiry of the mortgage period. But for the first time the appellants have claimed that the period of limitation was extended under Section 20 of the Indian Limitation Act, because, the mortgagee being in possession of the property and, according to the terms of the mortgage, receiving the produce of the mortgaged land in lieu of interest, such receipt of produce in lieu of interest must be deemed to be payment for the purpose of Sub-section (2) of Section 20 of the Indian Limitation Act, and that being the case, there can be no doubt limitation would only begin to run from the date of last payment, which certainly was not earlier than the 24 February 1912 when the Watandar-mortgagor died, and the contract being registered, under Art. 116 the plaintiff would have six years within which to sue for the debt from that date. In my opinion the suit is not barred by limitation, and the agreement is not void under Section 5 of the Watan Act. Therefore, the decree dismissing the suit must be set aside and the case remanded to the trial Court to continue the hearing. The costs in the trial Court will be costs in the cause. Bach party will bear his own costs in the first appeal Court and in this Court. Shah, J.