Madras High Court
S. Rosely vs Lazar Nadar And Ors. on 11 September, 1987
Equivalent citations: (1988)1MLJ338
JUDGMENT Srinivasan, J.
1. Though the question which arises for consideration in this second appeal is a simple one, it appears to be complicated on account of the trappings, which are usually found in a case from Kanniakumari District. The suit was originally one for redemption of a mortgage dated 11.12.1952, executed by the plaintiff in favour of the first-defendant with reference to an extent of about 20 cents in survey number 3734 in Puthuval Purayidam. The plaintiff got title to the property by a sale in his favour by his mother Nakchithiram under Ex. A-7 dated 7.4.1220 Me. The Plaintiff's mother had in turn purchased the property from one Elias Nadar under Ex. A-4 dated 22.2.1103. On the same day, she executed a mortgage and Kuzhikkonam deed under Ex. B-1 in favour of one Yovan Vedakkannu with reference to an extent of 1 acre, including the present suit-property. The mortgage under Ex. B-1 executed a sub-mortgage in favour of Chellamma and Rosali under Ex. A-10 dated 13.10.1110 Me corresponding to 27.5.1935. Thereafter, Yovan Vedakkannu assigned the right obtained by him under Ex. B-1 to one Devadoss on 1.8.1114 Me under Ex. A-11. The said Devadoss in turn assigned his rights under Ex. A-5 dated 26.8.1118 Me. to one Joseph. From the said Joseph, a release deed was obtained with reference to his right by one Esthar on 30.7.1119 Me under Ex. A-6. The said Esthar assigned his rights to Yakoovu Nadar on 23.12.1125 Me. under Ex. A-8. The said Yakoovu Nadar relinquished his rights as chittottidar in favour of the plaintiff on 23.3.1950 under Ex. A-9. The plaintiff having purchased the mortgagor's rights under Ex. A-7 became the absolute owner as the rights of the mortgagor and the mortgage merged in him. But, under Ex. A-9 the plaintiff was directed by Yakoovu Nadar to redeem the sub-mortgage, which was in subsistence at that time. The recitals found in Ex. A-9 do not expressly give the details of the sub-mortgage dated 12.10.1110 in favour of Chellamma and Rosali, but it is obvious that the sub-mortgage referred to in Ex. A-9 was only the sub-mortgage evidenced by Ex. A-10. But the recitals in Ex. A-9 mentioned the sub-mortgage as Kochukunju and Rosali Ammal. Kochukunju happens to be the first-defendant and also the husband of Chellammal, one of the sub-mortgages. It is contended by the respondent that Rosali, the other sub-mortgage was also a wife of Kochukunju, but that is not admitted by the appellant. Whether the appellant is the wife of Kochukunju or not, it is not in dispute that the appellant was the sister of Chellammal and thus closely related to Kochukunju, Ex. A-9 contains a clear direction to the plaintiff to redeem Kochukunju and for that purpose a sum of Rs. 50 was retained with him.
2. After getting Ex. A-9 in his favour, the plaintiff executed the mortgage Ex. A-1 on 11.12.1952 in favour of the first-defendant. The relevant recitals in Ex. A-1 read thus:
This is given as otti and Kuzhikonam to you for Rs. 150. As per the sale deed aforesaid, there is an otti which I have not rendered and that otti right has been assigned to others and ultimately come to you and for that otti amount Rs. 49 annas 2 is retained with you and balance I have received in cash. Rs. 100 and annas 14 this day.
This is the translation of Ex. A-1 given by learned Counsel for the appellant and there is no objection on behalf of the respondent to this translation.
3. Though there is reference to the sub-mortgage in Exs. A-5, A-6, A-8 and A-9, the correct details thereof are not given in any of those documents. On the other hand, Exs. A-8 and A-9 expressly mention Kochukunju (first-defendant) as the sub-mortgage. That is why, when the plaintiff executed Ex. A-1 mortgage in favour of the first-defendant, he had stated that the sub-mortgage right had come to vest in the first defendant and an amount was retained by the first-defendant for the purpose of discharging that sub-mortgage.
4. When the plaintiff filed the present suit for redemption of the mortgage dated 11.12.1952, he was obviously, under the impression that the said mortgage which was in favour of the first-defendant had been discharged by Ex. A-1 itself. Consequently, the only relief prayed for by the plaintiff at the time of the institution of the suit was for redemption of Ex. A-1 dated 11.12.1952. He had impleaded the first-defendant, who was the mortgage and defendants 2 to 5 who were the children of the first-defendant, on the footing that they had certain rights derived from the mortgage. The suit was, in the first instance, decreed in favour of the plaintiff. There was an appeal by the first-defendant in the District Court, Kanniyakumari at Nagercoil as A.S. No. 153 of 1973. When that appeal was taken up for hearing, it was represented by the first-defendant-appellant that the suit was incompetent, because it was not laid for redemption of the earlier mortgage, thereby meaning the sub-mortgage dated 13.10.1110. It is better to extract the relevant portion of the Judgment of the District Judge dated 1st March, 1974 in that appeal.
When the appeal was taken up for hearing, it was contended by the first defendant that the suit is incompetent because it is not laid for the redemption of the earlier mortgage. It was also his contention that the suit mortgage Ex. A-1 is only in respect of 5 3/4 cents and that, inasmuch as the 1st defendant had not redeemed the earlier mortgage, he could not deemed to have been in possession of the entire extent of 20 cents and consequently the possession of the 1st defendant to the extent of 14 3/4 cents could not be referred to the suit mortgage. That contention appears to gain considerable force. The earlier mortgage of 1110 M.E. was not filed in the lower Court. However, the learned Counsel appearing for the 1st defendant has got a copy of that mortgage. From that mortgage, it is seen that the two wives of the first-defendant are the mortgages. In view of such a position, it was conceded by both sides that, without impleading the children of Chellammal and Rosali the other wife of the first-defendant, it is not possible to dispose of the suit satisfactorily. Under those circumstances, both parties agreed that the suit might be remanded to the lower Court for fresh disposal.
5. Consequently, the suit was remanded to the trial Court. The plaintiff filed I.A. No. 1321 of 1974 for impleading Rosali, the present appellant in this second appeal, as the sixth-defendant in the suit. In the affidavit filed in support of that application, the plaintiff had referred to the order of the appellate Court remanding the matter to the trial Court. He has stated that in view of the facts mentioned in the remand order made by the appellate Court, it was necessary to implead the appellant herein as a party to the suit. It is thus clear that when the appellant was impleaded in the suit as the sixth-defendant, it was for the specific purpose of redeeming the suit mortgage dated 13.10.1110, which was in favour of the appellant as well as her sister Chellammal. The order impleading the appellant as a party to the suit was passed on 15.11.1974. But the plaint was not amended so as to include a prayer for redeeming the sub-mortgage. The plaintiff filed in application I.A. No. 775 of 1975 for directing the sixth-defendant to produce the copy of the sub-mortgage deed dated 13.10.1110. The sixth-defendant, did not produce the document and the suit went on for trial, and once again it was decreed in favour of the plaintiff. In the course of the judgment, the trial Court observed as follows:
After remand the sixth-defendant was impleaded in this case and the children of Chellammal were already parties in this suit. The sixth defendant filed a written-statement stating that she is not mortgage of the plaintiff and that she is not aware of the mortgage dated 11.12.1952 and that she is not in possession of the suit property under the suit mortgage. The sixth-defendant is in possession through the mortgage of the document No. 779 of 1103. Now the sixth-defendant is the main contesting defendant in this case. Ex. A-1 is the copy of the mortgage deed. Ex. A-2 is the copy of suit notice. Ex. A-3 is the reply notice. A perusal of Ex. A-1 would show that on the date of Ex. A-1 the mortgagor handed over some portion of the suit property to D-l and the remaining portion of the suit property was already in possession of D-l by assignment of original mortgage. As already pointed out, Ex. A-1 was executed by the plaintiff in favour of D-l. The plaintiff purchased the entire suit property under Ex. A-7 from Nachatran, In Ex. A-7 there is a recital to redeem the prior mortgage on the property in favour of D-l. So instead of discharging prior mortgage mentioned in Ex. A-7 the plaintiff has executed Ex. A-1 in favour of the first-defendant. It is significant to note that D-l has accepted the document. Before the appellate Court at the time of arguments it is seen from remand order that a mortgage document of 1110 M.E. was shown. But significantly that document has not been filed in this Court so far. But instead Ex. B11 dated 22.2.1103 has been produced in this Court.
The learned trial Judge made a further observation in these terms:
As contended by the counsel for the plaintiff it is quite probable that the sixth-defendant has been set up by the first-defendant to drag on the proceedings in order to defeat and delay the claims of the plaintiff. The contentions of the defendants are quite untenable. So I find that the defendants are in possession of the suit property only under the suit mortgage and they are not entitled to resist removal of the building in the suit property. There is no other evidence to show that the suit is not maintainable.
6. Once again, there was an appeal against the judgment of the trial Court, but it was by the sixth defendant. When the appeal came up for hearing before the Sub-Judge, Kuzhithurai, a joint endorsement was made by parties as follows:
In view of the mortgage deed filed in the appeal the suit may be remanded to the lower Court for a fresh consideration as to whether the sixth-defendant is in possession of the plaint schedule property under the plaint mortgage.
sd/- ...
Advocate for appellant.
Plaintiff may be allowed to amend the plaint suitably.
Sd/- ...
Advocate for respondent.
Based on that endorsement, the suit was remanded once again to the trial Court.
7. After the remand, the plaintiff filed an application for amending the plaint by including a prayer for redemption of the Sub-mortgage dated 13.10.1110. The amendment application came to be ordered on 7.12.1977. The trial Court rejected the contentions of the defendants and passed a decree for the third time in favour of the plaintiff. On appeal, that decree was, confirmed by the Sub Judge of Kuzhithurai. The present second appeal is against the said judgment and decree of the learned Sub Judge.
8. Learned Counsel for the appellant urged two contentions. The first contention is that the sixth-defendant, the Sub-mortgage had perfected title by Adverse possession, on the expiry of a period of twelve years from 23.3.1950. When the successor in interest of the mortgage under Ex. B-1 dated 22.1.1103 had relinquished his interest in favour of the plaintiff, who was the successor in interest of the mortgagor. In short, the contention is that when a mortgage relinquishes his interest in favour of the mortgagor or when the mortgagor redeems the mortgage, in the absence of the Sub-mortgage, the sub-mortgage becomes a trespasser on the date of such redemption or on the date of such extinction of the original mortgage and thereafter the possession of the sub-mortgage becomes adverse to the mortgagor and if the mortgagor fails to recover possession within a period of twelve years from that date from the sub-mortgage, he would lose his rights to the property. I do not find any support for this proposition in any decision of any Court. Learned Counsel invited my attention to the decision of the Full Bench of the Kerala High Court in Chelamanna v. Parameswaran . In that case, there is a detailed discussion about the position of a sub-mortgage vis-a-vis the original mortgagor. On the facts of that case, the Full Bench held that the mortgagor had no knowledge of the sub-mortgage and was therefore not bound by the sub-mortgage and the sub-mortgage had no right as against the mortgagor with the result that when the mortgagor redeemed the original mortgage the rights of the sub-mortgage came to an end. Far from supporting the proposition urged by learned Counsel for the appellant in the present case, some of the observations made by the Full Bench in that case are really against the appellant. The Full Bench observed thus:
We take a different view. A sub-mortgage effects a partial transfer of the mortgage right, and, when a mortgage is redeemed in the presence of the sub-mortgage, the sub-mortgage also is redeemed. The property is freed of the sub-mortgage, and the sub-mortgage must thereafter look for payment to his mortgagor and to the money paid for the redemption. The test for determining whether the sub-mortgage right remains with the person redeeming as a separate right so as to be subject to redemption by a subsequent sub-mortgage would be whether the person redeeming has a right of subrogation in respect of the redeemed sub-mortgage. We have already indicated out view that where, as in these cases, the person redeeming if the mortgagor there is no such right of subrogation and hence no question of the mortgagor holding the redeemed sub-mortgage as a separate right. Even if it to be that the exclusion of the mortgagor from the right of subrogation by Section 92 of the Transfer of Property Act does not apply to the redemption effected by the third-defendant, either in the view that the word, "Mortgagor" in the section means the original mortgagor and does not include a purchaser of the mortgaged property, or in the view that Section 92 has no retrospective application, the question would still be one of intention. It does not appear that the third-defendant was aware of the subsequent sub-mortgage and there is no reason to think that it was his intention to keep the earlier sub-mortgages alive.
14. A sub-mortgage being a partial transfer of the mortgage security, O.34, Rule 1, of the Code requires that the sub-mortgage should be joined as a party to a suit for redemption of the mortgage. But the non-joinder of the necessary party does not render the decree in the suit a nullity though it might, in some cases, make the decree ineffectual. The decree is good as against the party to the suit and the redemption effected in a suit against the mortgage without the sub-mortgage on the party array, is an effective, redemption so far as the mortgage is concerned. All that can be said is that the redemption cannot effect the rights of the sub-mortgage. His sub-mortgage remains in force and, if the redeeming mortgagor is bound thereby, he can enforce his sub-mortgage against the property in the hands of the mortgagor.
15. A redemption effected in a suit brought by the mortgagor against the mortgage, without the sub-mortgage on the party array, is effective so far as the mortgage is concerned, but cannot affect the rights of the sub-mortgage. It is no better but, at the same time, no worse than a redemption effected outside the Court to which the sub-mortgage is not a party. But, whether, after redemption, the sub-mortgage has any right which he has enforced against the property in the hands of the mortgagor is an entirely different matter. That depends on whether the mortgagor was aware of the sub-mortgage at the time of the redemption. Once this is appreciated, it will readily be seen that there is no inconsistency whatsoever between statements such as that under Order 34, Rule 1 of the Code, a sub-mortgage is a necessary party to a suit for redemption of the mortgage, and statements such as that registration of the sub-mortgage is not notice thereof to the mortgagor. The former pertains to the question as to whether the redemption by suit affects the right of the sub-mortgage; the latter to the question whether a sub-mortgage has any right at all which he can enforce against the property in the hands of the mortgagor after redemption.
9. A Division Bench of this Court had to consider the position of a sub-mortgage in a case where the mortgagor had no notice of the sub-mortgage. In Issakanakath Maliyakkal Muhammad Haji v. Themmil Kizhakke Nalakath Moidin Kutti (1921)63 I.C. 192 : A.I.R. 1921 Mad. 374, the Division Bench held that a mortgagor, who in the absence of actual notice of a registered sub-mortgage, passed, to his mortgage the amount due to him under a decree passed in a redemption suit to which the sub-mortgage was not a party, is protected from any claims advanced against the property on the strength of the sub-mortgage. It is significant to note that the Division Bench held that the registration of a sub-mortgage is not legal notice to the original mortgagor of the existence of the sub-mortgage.
10. The said decision was referred to and relied upon by another Division Bench of this Court in Viswanatha Ayyar v. Chimmukutti Amma And Ors. (1932)S2 M.L.J. 272 : 135 I.C. 535 : I.L.R. 55 Mad. 320 : A.I.R. 1932 Mad. 15. It was held that the sub-mortgage cannot bring the right mortgaged to him to sale, after the mortgagor, without notice of the sub-mortgage, pays off him mortgage out of Court.
11. A Full Bench of this Court had occasion to deal with the rights of a sub-mortgage vis-a-vis the original mortgagor in Chinniah Goundan And Two Ors. v. Subramania Chettiar And Anr. . It is necessary to extract the following portion of the judgment of the Full Bench.
Before considering that question it is necessary to find the remedies available under the law to a sub-mortgage. A debt secured by a mortgage being the property of the mortgage, he can, in his turn, assign or create a security over it. If he chooses to create a mortgage over it, such a mortgage is called a sub or derivative mortgage. The sub-mortgage will have the security of the mortgage will have the security of the mortgage right created by the original mortgage for the payment of his debt. In relation to the sub-mortgage, the mortgage will be the mortgagor. He will, therefore, have a right to pay off his debt and redeem the property. There will be a corresponding right in the sub-mortgage to sue on the sub-mortgage and to enforce the sub-mortgage as against the security, that is, the mortgage right. In neither of these proceedings will the mortgagor be interested. Order 34, Rule 1, Civil Procedure Code, states that all persons interested in the mortgage security or in the right of redemption should be joined in a suit relating to a mortgage. In a sub-mortgage, the only person interested in the mortgage security is the sub-mortgage and the person interested in the right of redemption would be the mortgage. The mortgagor will not be a necessary party to either of the suits mentioned above. The mortgagor who has a right to redeem his mortgage cannot be deprived of his right to redeem by the creation of a sub-mortgage by his mortgagor. The redemption of the mortgage will put an end to the sub-mortgage and the sub-mortgage being a person interested in the mortgage right would be a necessary party to a suit for redemption by the mortgagor. The sub-mortgage who, to a limited extent is an assignee of the mortgage right will have a corresponding right to sue the mortgagor by reason of his derivative title. In enforcing his sub-mortgage he can bring to sale the properties mortgaged to his mortgagor, viz., the mortgage, instead of merely bringing to sale the interest of the latter. In such a case the form of the decree would be to direct on account being taken between the mortgage and the mortgagor, and also between the sub-mortgage and the mortgage, and declare their respective rights in the sale proceeds of the mortgaged property. Form No. 11 to Appendix D to the first schedule to the Civil Procedure Code provides for such a case. In Vellayan ChettiarR v. Mahalinga Pathan (1938)1 M.L.J. 171 : A.I.R. 1938 Mad. 30 : 173 I.C. 781, Venkataramana Rao, J. observed:
Ordinarily a sub-mortgage's right just like any other mortgage is to enforce his mortgage and bring to sale the property mortgaged to him, that is, the interest of the mortgage in the property mortgaged to the latter. But the law permits him to enforce sale of his said property under circumstances and conditions which would entitle the original mortgage to bring the properties to sale. To such a suit the original mortgagor should be made a party. The principle on which this is allowed is that a sub-mortgage's claim is by a derivative title from the mortgage and he is in fact an assignee of the mortgage. When the mortgage effects a mortgage of his mortgage interest he is creating a transfer of his right as mortgage though not absolutely. Therefore, when a sub-mortgage sues for sale of the property he is enforcing the right of the original mortgage.
Thus the two remedies which a sub-mortgage has got are distinct and should in our opinion be mutually exclusive, the first being based on the covenant, the second on a derivative title to the mortgage right. Ram Shankar Lal v. Ganesh Prasad (1907) I.L.R. 29 A11 385 was a case where a Full Bench of the Allahabad High Court considered the right of the sub-mortgage to the first of the two remedies mentioned above. It was held that a sub-mortgage of mortgage rights in immovable property was entitled to a decree for sale of the mortgage right of his mortgagor, viz., the mortgage. In Amaratlal v. Naranbhai (1910)9 I.C. 765 : 13 Bom. L.R. 90 a derivative or sub-mortgage was held entitled to sue the mortgage without making the original mortgagor a party and that the rights of the mortgagor could not be effected by any decree in such a suit and that even if the decree in the suit spoke generally of the sale of the mortgaged property, the mortgaged property would not include the interest of the mortgagor in the property.
The second remedy available to a sub-mortgage has been recognized in Muthu Vijaya v. Venkatachalam, 6 M.L.J. 235 : (1896) I.L.R. 20 Mad. 35, where it was held that a sub-mortgage was entitled to a decree for the sale of the original mortgagor's interest in the circumstances which would have entitled the mortgage on the date of the sub-mortgage to claim that relief. Subramania Iyer, J., observed at page 38.
The original mortgagor and the sub-mortgage, as the holders of different interests in one and the same specific property, stand to one another in a relation that gives rise to certain rights and duties inter se. It is admitted that a mortgagor whose right to redeem originally existed as against the mortgage alone, becomes by virtue of the sub-mortgage, entitled to exercise that right as against the sub-mortgage also, who consequently must be made a party to redemption proceedings. Now, as the sub-mortgage may be redeemed by the original mortgagor it ought to be held that the former may foreclose the latter, where that relief can be claimed or, where such relief cannot be granted, he may obtain an order for sale and thereby put an end to the other party's right to redeem. For it is only just and reasonable that, whilst the law, on the one hand, recognises a right in the original mortgagor to redeem the sub-mortgage, it should give the latter, as against the farmer, the generally correlative right (Daniel's Chancery Practice, sixth edition at page 1412) to foreclose or sell.
In Moidheen Pichai Sahib v. Nagoore Meera Rowther (1937)2 M.L.J. 536 : A.I.R. 1937 Mad. 799. a sub-mortgage sued for sale of the property impleading both the mortgagor and mortgage. The Court decreed the suit on the claim in the sub-mortgage which was smaller than the amount due on the mortgage. The mortgage thereafter filed his suit on the mortgage. It was held that the causes of action for the two suits were different and that the decision in the former suit would not operate as Res Judicata in regard to the latter suit. Vengannan v. Ramaswami (1943)1 M.L.J. 362 : I.L.R. 1944 Mad. 104 : A.I.R. 1943 Mad. 498, was a case where originally a sub-mortgage filed a suit impleading both the mortgage and mortgagor praying for sale of the mortgaged property. The plaint was sought to be amended by abandoning the relief as to sale of the property and restricting it to sale of the mortgage right. The learned Judges held that the amendment seeking a different relief was based on the same cause of action, namely, the sub-mortgage. Leach C.J., observed at page 107:
A sub-mortgage has two courses open to him. He can, if he wishes, limit his suit to the sub-mortgagor, in which, case he only asks for the sale of the sub-mortgagor's interest in default of payment of the decretal amount. On the other hand, he may join the original mortgagor and ask for a decree for the sale of the mortgaged property in default of payment. In this case the relief to which he is entitled is to be gathered from Form No. 11 in Appendix D to the Code of Civil Procedure.
It is unnecessary for the purpose of the present case to decide whether the cause of action for the two remedies open to a sub-mortgage are the same or distinct. But the two remedies available to a sub-mortgage are based on different rights and can only be alternative case. If the sub-mortgage has elected one of the two remedies and obtained a decree the cause of action on the sub-mortgage would be merged in the judgment and it would not be open to him to revive it for relief on the basis of the alternative remedy.
12. Thus it is clear that the sub-mortgage has got two distinct remedies: (1) Against the mortgagor on the basis of the covenant between him and his mortgagor and 00 on the basis of the privity of the estate as against the original mortgagor if the original mortgagor is aware of the sub-mortgage and if he discharges the original mortgage, without any reference to the sub-mortgage, the rights of the sub-mortgage are kept in tact and he can certainly exercise the same as against his mortgagor as well as the original mortgagor. The original mortgagor cannot put an end to the rights of the sub-mortgage by redeeming his original mortgage without the knowledge of and in the absence of the sub-mortgage. Therefore, the position taken by learned Counsel for the appellant that the sub-mortgage becomes a trespasser at the moment when the original mortgage is redeemed by the mortgagor without reference to the sub-mortgage is not tenable. If he becomes a trespasser, then he cannot have any right which could be enforced as against the original mortgagor or his own mortgagor. Once the law recognises that the sub-mortgage has got two distinct rights; one against the original mortgagor and the other against his own mortgagor, it should follow that the sub-mortgage is not a trespasser, when the original mortgage is not a trespasser, when the original mortgage is redeemed and in so far as the sub-mortgage's rights are concerned, the sub-mortgage continues to exist but for which he cannot enforce his rights. If he is able to enforce his rights as against the original mortgagor, then the original mortgagor will be entitled to redeem the sub-mortgage. Consequently, the first contention of learned Counsel for the appellant should fail.
13. It is next argued that the suit for redemption as against the sixth-defendant is barred by limitation. It is admitted that the last date for redemption of the sub-mortgage dated 13.10.1110 is 27.5.77. The plaint was amended so as to include a prayer for redemption of the mortgage only on 7.12.1977. The normal rule is that the amendment to the plaint will relate back to the institution of the suit and it must be deemed that the prayer was originally in the plaint, when the suit was instituted. The sixth-defendant was impleaded as party only on 10.11.1974. If the normal rule of relating back is to be applied, it has to be said that the amendment dates back to 10.11.1974 and on that date it must be deemed that there was a prayer for redemption. If that is the correct position, then the suit is not barred by limitation. But, learned Counsel for the appellant attacks the correctness of the order granting amendment of the plaint. Learned Counsel submits that the courts below ought not to have allowed the amendment in the plaint when the suit would have been barred by limitation if it had been instituted on the date of amendment. It is certainly open to learned Counsel for the appellant to object to the validity of the order of amendment in this appeal. In fact, even before the lower Appellate Court that objection had been raised and it was considered and over-rules by the lower appellate Court. Before dealing with the position in law regarding amendment of plaint, it is necessary to set out some more facts.
14. Already it has been pointed out that in the release deed in favour of the plaintiff by Yacovu Nadar, who was a successor in interest of the original mortgage, the recital referred only to the first-defendant as the sub-mortgage. The correct particulars of the sub-mortgage dated 13.10.1110 were not given in the said release deed. Similarly, the document under which Yacovu Nadar got an assignment of the right of Esthar, there was no reference to the sub-mortgage dated 13.10.1110. On the other hand, the sub-mortgage was mentioned to be the first-defendant. Naturally, when the plaintiff obtained a release from Yacovu Nadar, he could have under the only impression that the sub-mortgage was Kochukunju Nadar and not anybody else. There was no reason for the plaintiff to suspect that the recital found in the document dated 23.11.1215 was a mistake. Even in the earlier document's namely, Exs. A-5 and A-6, there was no specific reference to the sub-mortgage dated 13.10.1110, though a mention is made of a subsisting mortgage, yet there was no occasion for the plaintiff to make an investigation to find out which was the sub-mortgage that was referred to in these documents, as the name of the sub-mortgage was clearly given as Kochukunju. That is they when he executed a mortgage in favour of the first-defendant on 11.12.1952 under Ex. A1 he had stated that the mortgage was already in possession under the sub-mortgage and he directed a retention of a sum of Rs. 49 and annas 2 for discharging the said sub-mortgage. The first-defendant having taken Ex. A1 mortgage deed with the recitals found thereunder, for the first time stated in the defence to the suit for redemption that an extent of 14-1/4 cents was not in his possession under the mortgage dated 11.12.1952, but it was in the possession of the sixth-defendant and her sister under a sub-mortgage. I have already referred to the fact that the sub-mortgage deed was not filed into Court inspite of a petition for direction to the sixth-defendant to produce the same. Actually, the plaintiff obtained a registration copy and filed it as Ex. A-10, after the suit was remanded to the trial Court for the second time. Immediately after getting the particulars of the sub-mortgage, on seeing the registration deed of the sub-mortgage, the plaintiff applied for amendment of the plaint by including a prayer for redemption of the sub-mortgage. But long before that he had impleaded the sixth-defendant when it was stated before the District Judge that the sixth-defendant was a necessary party as a sub-mortgage. When the sixth-defendant was impleaded as a party, it was for the specific purpose of redeeming the sub-mortgage in favour of the sixth-defendant. In the circumstances, it cannot be said that the plaintiff had been negligent or was not Bona Fide in not seeking an amendment of the plaint with regard to the prayer for redemption of the sub-mortgage on an earlier date. But he had come forward with the prayer at the earliest possible time. The trial Court cannot be said to have acted enconsouly when it ordered the amendment in 1977. The lower Appellate Court has given sufficient reasons for affirming the said order of amendment.
15. The objection raised by the learned Counsel for the appellant is that a Court has no jurisdiction to order an amendment if a suit would be barred by limitation on the date of such amendment. I cannot agree with learned Counsel for the appellant as the matter is directly governed by a decision of the Supreme Court in A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation . While recognising the power of a Court to allow an amendment even after the relief was barred by limitation on the date of the amendment, the Supreme Court observed as follows:
It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neale (1887)19 QBD 394. But it is also well recognised that where the amendment does not constituted the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation. Charan Das v. Amirkhan, 39 M.L.J. 195 : 47 I.A. 255 : A.I.R. 1921 P.C. 50, and L.J. Leach and Co. Ltd. v. V. Jardine Skinner and Co., . The principal reasons that have led to the rule last mentioned are first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes Cropper v. Smith (1884)26 Ch.D. 700 (710-711) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended Kisandas Rupchand v. Rachappa Vithoba (1909) I.L.R. 33 Bom. 644 at 651 : 11 Bom. L.R. 1042, approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda, 1957 S.C.J. 371 : 1957 S.C.R. 595 (603) : A.I.R. 1957 S.C. 363 at 366.
The expression 'cause of action' in the present context does not mean 'every fact which it is material to be proved to entitled the plaintiff to succeed' as was said to Cooke v. Gill (1873)8 C.P. 107 (116) in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unices Property Corporation Ltd. (1962)2 All E.R. 24, and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words 'New case' have been understood to mean 'new set of ideas' Dornan v. J.W. Ellis and Co. Ltd. (1962) 1 All. E.R. 303. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.
16. Hence, the second contention of learned Counsel for the Appellant has also got to fail.
17. In the result, the Second Appeal fails and it is dismissed, but in the circumstances, there will be no order as to costs.