ASHARFI LAL Vs. ZAMIR FATIMA BIBI

JUDGEMENT

(1.) This is a second appeal by the plaintiffs whose suit for redemption was decreed by the trial Court but dismissed by the lower Appellate Court on the ground that it was time-barred. The question of limitation is the only one raised in this second appeal. The plaintiffs sued for redemption of a mortgage by conditional sale executed on 7 August 1872. The relevant clause for the purpose of limitation in this deed is as follows: Bawaz mubligh 1203-1-6 mazkura bala he rehan miadi do sal yani bai bilwafa kar diya wa tamam wa kamal zare saman apna murtahinse wasul paya ab dame wa dirame yaftani mera zimme murtahin he baqi nahin hai aur igrar yeh hai ki andar do sal he jab rupya mahina Sawan men nagd yekmusht ada harden tab us sal jasdad haqiyat apni fak rehan kara lewen aur agar andar do sal he rupya ada na ho to bad do sal he yeh bai bilwafa bai Kamil hojaga aur murtahin malik mustaqil shai marhuna ha hoga.

(2.) The trial Court interpreted this mortgage to mean that redemption could not take place until the period of two years had expired, i.e., on 7 August 1874. The suit was brought on 7 August 1934 and was therefore according to the trial Court within 60 years of the date when the right to redeem first accrued. Article 148 of Sch. 1, Limitation Act, states that for a suit against a mortgagee to redeem or recover possession of immovable property mortgaged, the period of limitation is 60 years and, the period begins to run from the time "when the right to redeem or to recover possession accrues." On the other hand, the lower Appellate Court held that the clause quoted gave a right to redeem prior to 1874 and that therefore the period of 60 years in Art. 148 had begun to run from 1873 and had expired in 1933 and therefore the suit in 1934 was time-barred. The expression used by the Court below is that the right to sue will begin to run from the first year of the mortgage. The actual date in the mortgage of 7 August 1872 has been ascertained by learned Counsel for the appellants to correspond to Sawan Sudi 13, Sambat 1929, i.e. it is the 13 day of the month of Sawan in that year. There therefore remained 17 days in that month of Sawan in 1872 and if the interpretation adopted by the lower Court is correct then redemption could have been effected in the 17 days of the month of Sawan in the year 1872 or in the month of Sawan in the year 1873 and also in the month of Sawan in the year 1874. On the other hand, the interpretation of the learned Counsel for the appellants is that there could not be redemption until the expiry of two years and as redemption could have first taken place on 7 August 1874 the suit which was brought on 7 August 1934 was with, in the period of 60 years. Learned counsel at first based his argument on the provisions of Section 60, T.P. Act, (Act 4 of 1882), and his argument was that this Section lays down the law in regard to redemption for mortgages generally and therefore covers the mortgages by conditional sale which are defined in Section 58, Sub-section (c) of that Act. Section 60 states: At any time after the principal money has become payable the mortgagor has a right of payment or tender at a proper time and place of the mortgage money to require the mortgage....

(3.) His point was that redemption was at any time after the principal money has become payable. He further argued that in the amendment of the Transfer of Property Act by Act 20 of 1929 the word "payable" had been replaced by the word "due" and therefore he argued that this alteration should be considered to have the effect that the right to redeem and the right to foreclose should be co- extensive and should run from the same point in time. Now whatever the merits of this contention are, there is a serious difficulty in the application of this argument to the present case. In the Transfer of Property Act (Act 4 of 1882) Section 2 provides: But nothing herein contained shall be deemed to affect...(c) any right or liability arising out of a legal relation constituted before this Act comes, into force, or any relief in respect of any such right or liability.