RAMDAYAL SEN Vs. CHAKRAPANI NANDI

JUDGEMENT

(1.) The appellants Ramdayal Sen and others (hereinafter referred to as the Sens) brought a suit for possession of 2/3rds share of a house in Purulia. Their contention was that they should get possession on paying Rs. 400 to Chakrapani Nandi and others, the principal defendants, (hereinafter referred to as the Nandis) in redemption of a mortgage. The facts may be briefly stated as follows: The house in suit belonged to one Madhusudan Sen who gave it in usufructuary mortgage to Ramkumar De for Rs. 600 in 1892. Madhusudan's son Radhhaballav joined in the execution of the mortgage deed. It is said that Radhaballav joined in the execution because the property had been acquired in his name by his father Madhusudan and the mortgagee therefore insisted that Radhaballav should join in the execution. The Sens are the successors in interest of Madhusudan's other two sons, Haladhar and Ananta.

(2.) In 1905 Radhaballav's heirs gave a simple mortgage on this house and other property to Joy Gopal Nandi father of the defendants-Nandis by a registered deed in which it was asserted that all the properties covered by the deed belonged to Radhaballav's heirs. Subsequently Joy Gopal Nandi got a decree on that mortgage and put it into execution and the mortgaged property was sold at auction subject to the usufructuary mortgage of Ramkumar De. The sale was confirmed on 26th February 1913. After that Joy Gopal applied for delivery of possession, but the delivery of possession was resisted and Joy Gopal found it necessary to pay off De's mortgage. Accordingly he paid Rs. 600 to De and got possession of the house in suit and has been in possession ever since. Two representatives of the Sens filed petitions under Order 21, Rule 100 and they were partly successful So the Nandis filed a suit in 1915, which suit was dismissed. Ananta Sen in his turn brought a suit in 1916 with regard to a part of the disputed property and was successful. In the suit which is now under appeal, the Nandis did not dispute the proposition that the Sens as successors-in-interest of Haladhar and Ananta inherited 2/3rds share of the house in suit. But the Sens suit has been dismissed by the Munsif on the ground of limitation; and on appeal the Additional Subordinate Judge has upheld the Munsif's order. In this Court only the question of limitation has been argued.

(3.) In the first place the learned Advocate appearing for the appellants contends that the limitation for such a suit is determined by Art. 148, Lim. Act and not by Art. 144, as the lower Courts have held. Art. 148 provides a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The question is therefore whether Joy Gopal, after he had paid off De's mortgage, was himself a mortgagee within the meaning of Art. 148. For the Nandis it is argued that as by that time both the mortgages had been paid off there was no longer any "mortgagee;" and further that no one could bring a "suit to redeem," because redemption had already taken place. But under Section 92, T.P. Act, Joy Gopal on paying off De's mortgage would be entitled to be subrogated to the rights of the mortgagee, and thereby would himself become a "mortgagee" within the meaning of Art. 148. And the Sens being owners of a portion of the mortgaged house would be entitled to recover such portion from Joy Gopal on paying to him their quota of the mortgage money. And their suit for redemption would be governed by Art. 148, Lim. Act, as was decided by the Allahabad High Court in the very similar case of Nura Bibi V/s. Jagat Narain (1886) 8 All 295. It is true that Section 92, T.P. Act was not enacted until 1929. But the language of Section 63, Amending Act (20 of 1929) seems to suggest that Section 92 may be applied retrospectively. This was the view taken by a Full Bench of the Allahabad High Court in the case of Tota Ram V/s. Ram Lal 1932 All 489. I am inclined to hold, therefore, that Joy Gopal was a "mortgagee" within the meaning of Art. 148, and the Sens were entitled to bring their suit within 60 years from the time when the right to redeem accrued. However it is really unnecessary to decide those points in the present case because the Sens suit would not be time-barred even if governed by Art. 144, as I shall now proceed to show.