9911796707
TMI Blog1974 (2) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... not repaid within the stipulated period. About 20 years thereafter, the mortgagee sold 39 decimals out of it to Kishore Mohan for a valuable consideration of ₹ 200 under a registered sale deed dated 6-1-54 (Ex. A/1). He also sold the balance 68 decimals to the father of defendants 9 and 10. We are not concerned in this appeal with this second sale regarding 88 decimals. Kishore Mohan, who is the father of defendants 5 and 6, in his turn, sold the same 39 decimals for a valuable consideration of ₹ 99 to Pratima Devi by a registered sale deed dated 30-6-58 (Ex. B/1) and delivered possession. Since then Pratima Devi became owner in possession of 39 decimals. Sometime thereafter she died and was succeeded by her husband, defendant No. 11 and defendants 7 and 8 who are her two minor daughters through defendant No. 11. The plaintiff's case is that they tendered mortgage money to the mortgagee before he started selling but he refused to accept the same. At any rate the mortgage was extinguished upon lapse of 15 years from the date of mortgage by reason of the statutory provisions contained in Section 17 of the Orissa Money-Lenders Act and the plaintiffs are entitled to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortgagee for a valuable consideration. twelve years When the transfer becomes known to plaintiff. (c) to recover surplus- collections received by the mortgagee after the mortgage has been satisfied. three years When the mortgagor re-enters on the mortgaged property. The transfer of property mortgaged as contemplated in Article 61 (b) means a transfer of a larger interest than the transferor was competent to transfer. The relative difference in scope of Clauses (a) and (b) of Article 61 points the same way. Clause (a) covers suits to redeem or recover possession of immovable property mortgaged against the mortgagee or his successor-in-interest or assign, while Clause (b) relates only to suits to recover possession against a transferee for valuable consideration from the mortgagee. The period of limitation under Clause (a) is 30 years while under Clause (b) it is only 12 years and the starting point of limitation under the first clause is the date when the right to recover possession accrues while under Clause (b) it is when the transfer becomes known to the plaintiffs. Thus, when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer was for valuable consideration. In discharge of that onus the defendants have proved the sale deed of Baidyanath to Kishore Mohan (Ex. A/1) and sale deed by Kishore Mohan to Pratima (Ex. B/1). Ext. 1 was for a sum of ₹ 100 in respect of A1.27 acres. This stipulation for reconveyance of the property on payment of the mortgage amount contained therein was to enure for 5 years only with effect from 5-9-30 when the mortgage deed was executed. About 20 years after period for carrying out this stipulation was over, the first sale by the mortgagee to Kishori Mohan took place. The mortgagee apparently thought that he had perfected his absolute title to the property and conveyed it from that stand point. This becomes clear from his recitals in the first sale deed (Ex. A/1) where he has categorically stated that he was in possession of the conveyed property as absolute owner, that he has mutated his name in the landlords' sherista and that the vendee can also mutate his name in respect thereof in his place and enjoy the property from generation to generation for all time to come. The amount of consideration demanded and received is ₹ 200 for 39 decimals which, in com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itle to the suit properties by Kishori Mohan and thereafter by Pratima. The view that the initial onus lies on the plaintiffs to prove that 12 years have not completed since the date of their knowledge of the transfer under Ex. A/1 is based on two principles, firstly that it is the duty of the plaintiff to prove that his case is within limitation, and secondly that a fact which is within the special knowledge of a person, is to be proved by that person -- vide the case of Khadi Khan v. Murad Khan AIR 1942 Peshawar 39. The Privy Council in Radhanath's case (1871) 14 Moo Ind App 1 held that this Article (now Article 61, Clause (b)) is a special Article cutting down the period which mortgager may have against a mortgagee and is of a stringent kind, hence, any person claiming the benefit of such a stringent provision should clearly and distinctly show that he fills the position of the person contemplated by this Article, as a person to be protected. The plaintiffs claim the benefit of this provision of Limitation Act, in that they want the court to believe that 12 years have not elapsed since the date of their knowledge of the transfer till the date of the suit. They must, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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