Madras High Court
Kandi Unichaman vs Ahmed Kutti Kayi And Ors. on 8 December, 1897
Equivalent citations: (1898)8MLJ81
JUDGMENT
1. We think that the Subordinate Judge was Wrong in holding that the suit was barred under Article 97, Schedule ii of the Limitation Act. The claim is for money, but on a usufructuary mortgage, the cause of action being the failure of the mortgagor to secure the mortgagee in possession. The liability to secure the mortgagee in possession or in default, to repay the mortgage money, is not a liability arising under the common law on the ground of failure of consideration, but is a liability imposed by Section 68 of the Transfer of Property Act. If this liability be taken to be one arising under a covenant implied by law as incidental to the mortgage contract (which was in writing and registered), Article 116 of the Limitation Act would apply. Otherwise, the appropriate Article is 120, the case not being otherwise provided for. In either view, the suit is not barred since it was brought within six years from the time when the cause of action accrued. The ease of Sawaba Khandapa v. Abaji Jotirav, I.L.R. 11 B., 475, is distinguishable from the present by the fact that when it was decided, the Transfer of Property Act was not in force in Bombay, We, therefore, reverse the decree of the lower Court and remand the suit for disposal on the merits.
2. Costs will abide and follow the result.