Patna High Court
Harbans Narain Singh vs Ramdhari Mahton And Ors. on 29 July, 1959
Equivalent citations: AIR1960PAT51, AIR 1960 PATNA 51
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT
1. In the suit which is the subject-matter of this appeal the plaintiff alleged that on 23-3-1887, there was a usufructuary mortgage bond executed by Syed Ahmad Hussain in favour of Lachhman and Raghunath Mahto, the ancestors of the defendants first party, for a sum of Rupees 27/8/- with respect to 9 kathas 8 dhurs of land of survey plot No. 135, khata No. 266, in village Jurawanpur-Gopalpur. It is alleged further that Syed Ahmad Hussain sold the equity of redemption of the land to the ancestor of the plaintiff by a registered sale-deed dated 14-8-1890. The due date of redemption of the mortgage bond was 4-5-1890. On 23-5-1949, the plaintiff deposited the mortgage money in the court under Section 83 of the Transfer of Property Act, and on 19-5-1950, the plaintiff brought the present suit for redemption of the usufructuary mortgage and for possession of the land in question. The suit was contested by the defendants first party on various grounds. AH these grounds were rejected by the lower appellate court, except the contention of the defendants first party that the suit was barred by limitation. The lower appellate court accordingly dismissed the suit.
2. In support of this appeal on behalf of the plaintiff-appellant the first ground put forward by learned Counsel is that on a proper construction of the document of the 23rd March, 1887. there was a usufructuary mortgage bond and not an anomalous mortgage as held by the lower appellate court. Counsel on behalf of the respondents conceded that the document was a usufructuary mortgage bond and so we shall proceed to decide this appeal on the ground that the document of 23-3-1887, was a usufructuary mortgage bond. The next contention advanced on behalf of the plaintiff-appellant is that the case is governed by Article 148 of the Limitation Act, and the starting point of limitation under that Article would be 23-5-1949, which is the date of deposit under Section 83 of the Transfer of Property Act. Learned Counsel further said that the present suit is a suit for possession under Section 62(b) of the Transfer of Property Act, which states as follows :
"62. In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property together with the mortgage deed and all documents relating to the mortgaged property which are in the possession .or power of the mortgagee.
x x x x x x
(b) where the mortgagee is authorised to pay himself from such rents and profits or any part thereof a part only of the mortgage-money when the term, if any, prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee the mortgage-money or the balance thereof or deposits it in Court as hereinafter provided."
This point was controverted by the learned Government Advocate appearing on behalf of the respondents and it was submitted that the expression "mortgage money" in Section 62(b) refers only to the principal amount of money due upon the mortgage and not to the interest and so the case is not governed by Section 62(b) of the Transfer of Property Act. In this connection the learned Government Advocate referred to the language of Section 58, Clause (d), of the Transfer of Property Act, where the same expression "mortgage money" is used. We do not think it is necessary to decide this particular point in this appeal for even assuming in favour of the appellant that Section 62(b) of the Transfer of Property Act applies to the case the question remains, what is the starting point of limitation under Article 148 of the Limitation Act. Article 148 of the Limitation Act states as follows :
"148. Against a mortgagee to re deem or to recover possession of im-moveable property mortgaged.
Sixty years.
When the right to re deem or to recover pos session accrues : Provided that all claims to redeem arising under instruments of mortgage of immoveatale property situated in Lower Burma which had been executed before the first day of May 1863 shall be governed by the rules of Limitation in force in that province immediately before the same day."
This Article prescribes a period of sixty years for redemption suits or for a suit to recover possession against the mortgagee from the point of time when the right to redeem or the right to recover possession accrues. The crucial question in this case is, therefore, whether the suit brought by the plaintiff is a suit for redemption or is a mere suit for recovery of possession of the disputed land without a decree for redemption in favour of the plaintiff. The contention on behalf of the appellant is that the present suit is a suit brought by the mortgagor for recovery of possession simpli-citer and not for redemption, because there was a deposit of the mortgage money under Section 83 of the Transfer of Property Act, and thereafter the only remedy for the mortgagor was to bring a suit for possession because, the right of redemption had been extinguished. In our opinion, this argument is fallacious and must be rejected. It is well settled that the mortgage is not extinguished because of the deposit of the mortgage money by the mortgagor under Section 83 of the Transfer of Property Act. The mortgage still subsists until by the decree of the court or by the act of the parties the right of redemption is extinguished, within the meaning of the proviso to Section 60 of the Transfer of Property Act. In our opinion, the present case is governed by the provisions of Section 60 of the Transfer of Property Act, which is in the following terms :
"60. At any time after the principal money has become due. the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgage property which are in the possession or power of the mortgagee.
"(b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to retransfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished.
Provided that the right conferred by this section has not been extinguished by the act of the parties or by decree of a Court.
The right conferred by this section is called a right to redeem and a suit -to enforce it is called a suit for redemption.
x x x x x x In Rukhminibai v. Venkatesh ILR 31 Bom 527 it was pointed out by the Bombay High Court that even after the date of the tender or of the deposit under Section 83 of the Transfer of Property Act thd mortgagee continues as a mortgagee but with a statutory liability to account for the profits received by him from that date. It is not cortect to say that the mortgagee is then a mere trespasser. He is a mortgagee still, holding the property as a kind of trustee for the mortgagor, and as such accountable to the latter for the profits. We are, therefore, of the opinion that in the present case the suit brought by the plaintiff is not a suit for mere possession of the land but a suit for redemption of the mortgage.
This view is confirmed on a reference to para-graph 11 of the plaint. In this paragraph the plain-tiff prayed that a decree for redemption should be granted to him against the defendants and the plaintiff may be put in possession of the properties. In paragraph 8 also the plaintiff states that the property sought to be redeemed was located in mauza Juravanpur-Gopalpur and the cause of action for the suit accrued to the plaintiff on 23-5-1949, when the rehan money was deposited.
The court-fee was paid also upon the amount of bharna money, namely, Rs. 27/8/-, and for the past mesne profits. The plaint was therefore, valued upon the basis that it was a suit for redemption and not as if it was a suit for possession of the property in dispute. It is, therefore, clear that both in form and in substance the suit brought by the plaintiff is a suit for redemption and so applying the provisions of Article 148 of the Limitation Act the starting point of limitation would be sixty years from the date the right to redeem accrued. It is also obvious in this case that the right to redeem accrued to the plaintiff on 4-54890, which was the due date of redemption fixed in the usufructuary mortgage bond. If that date is the starting point of limitation it follows that the suit brought by the plaintiff is barred under Section 148 of the Limitation Act.
3. For these reasons we hold that there is no merit in this appeal which is dismissed with costs.