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TMI Blog1969 (1) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... Ext. F had become barred under the Limitation Act that bar related only to recovery of money due under Ext. F and not to the other rights including the right of redemption of the earlier mortgages that the appellants had under Ext. F, that the right of redemption could be lost only after the expiry of the period provided for redemption in the Limitation Act, that that period not having elapsed on the date of suit they were competent In the present suit to redeem the earlier mortgages for that reason also and that the suit was not barred by limitation. These in brief were the points pressed by him when this appeal was heard. 3. We must now deal with the question whether the appellants can be allowed to redeem the earlier mortgages on the ground that Ext. F was a mortgage by conditional sale and that it had worked itself out as a sale. The document is styled as a ''Sthreedhana Eedadharam . It was executed for 14,000 Fanams by-one Meeran Pillai in favour of his daughter Fathummal and her husband Peerukannu. The consideration for the document was the Stridhanam amount agreed to be paid by Meeran Pillai to Pathummal and Peerukannu at the time of their marriage. It is stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale only if it satisfied the conditions laid down in Section 58(c) of the T. P. Act 5. Section 58(c) read thus:-- Where the mortgagor ostensibly sells the mortgaged property -- on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller. the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale: Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale. It shows that in order that a transaction can be treated as a mortgage by conditional sale it should, to begin with, have the resemblance of a sale. That is implied in the expression ostensibly sells at the beginning of the definition, Where the transaction has, to start with, the appearance of only a mortgage it cannot come under Section 58(c). In such, a transaction provision to treat it as a sale if the mortgage amount is not paid wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was executed with full proprietary rights. The amount was not paid within the stipulated period. It was held that the document was only a mortgage with possession. (4) In Mrs R. F. Gomez v. P. V. Chellammal, 1957 Ker LT 495, with regard to the stipulation in a mortgage deed that If the mortgage was not redeemed within a certain period the transaction had to be treated as a sale it was held that it was a clog on redemption and was invalid. (5) In Mehrban Khan v. Makhana, AIR 1930 PC 142 it was the interpretation of a mortgage deed that provided for the mortgagees becoming owners of the mortgaged properties if the mortgage was not redeemed within 19 years that came up for interpretation. The mortgage was not redeemed within that time. The case arose from a decision of the Judicial Commissioner in the erstwhile North West Frontier Province where the T. P. Act had no statutory force. It was held that that matter had to be decided by equity and good conscience and that that meant that the rules of English law applied. Applying those rules it was held by the Privy Council that the provision in the document stipulating the mortgagees becoming owners of the mortgaged property if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principles and the decisions discussed above I hold that Ext. F is not a mortgage by conditional sale and that the condition in it for the mortgage working itself out as a sale is a clog on the right' of redemption and as such invalid. 8. I turn now to the question whether the appellants can be allowed to redeem the mortgages, Exts. XI and XII, treating Ext. F as a pure mortgage without possession. Article 119 of the Travancore Limitation Act, corresponding to Article 132 of the Indian Limitation Act, 9 of 1908, provided for 12 years from the date the money became due for institution of suits for recovery of money due charged on property. The right to recover the money due under Ext. F. had become barred by limitation long before the institution of the present suit. Article 136 of the Travancore Limitation Act fixed a period of 60 years for redemption of mortgages. The corresponding provision in the Indian Act, 9 of 1908, is Article 148 which provided a period of 60 years for institution of suits for redemption of mortgages. Section 29 of the Travancore Limitation Act corresponding to Section 28 of the Indian Limitation Act, 9 of 1908. provided that at the determination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge-holder has still an interest in the property and any interest in the property is sufficient to entitle him to claim redemption of prior mortgages under Section 91 (a) of the Transfer of Property Act, which reads as follows:-- Besides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of, the mortgaged property, namely:-- (a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same; In the present case on the date of suit the period prescribed for redemption of the prior mortgages had not become barred by limitation. Therefore the suit by the appellants on the strength of Ext. F for redemption of the prior mortgages was competent and had not become barred by limitation. So goes the interesting and apparently logical argument of the learned Advocate General. 10. I shall now examine the decisions cited by him in support of the position he has taken. Jokhu Bhunja v. Sitla Baksh Smgh, AIR 1930 All 410; Varaha Devaswom v. Ummer Sait, AIR 1951 Trav-Co. 17; and P. Neelakantan v. Umminnui Pillai 1952 Ker LT 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any time within the period prescribed under the Limitation Act for that purpose or if he comes into possession of the property within that period retain possession of it and at the time of surrender of possession insist on payment to him of time-barred debts charged on it also. The latter remedy is in character only a shield. This is not a rule peculiar to cases where there are several charges in respect of a property. It applies equally well to a case where there is only one mortgage in respect of a property. To recover the money due to him charged on property a mortgagee with possession has only 12 years under Article 132 of the Limitation Act. But even after that right has become barred by limitation he can retain possession of the mortgaged property until the mortgage is redeemed, for which there is 60 years under Article 148. If a suit for redemption is filed after the expiry of 12 years but within 60 years of the mortgage the mortgagee is entitled to get the mortgage money due to him before surrender of possession of the property although the right to recover that amount through suit has become barred. But such a right can be availed of only if the mortgagee or charge-hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Kashi Nath, AIR 1926 Pat 337 the learned Judges who decided that case differed from the view taken in (1909) 5 Ind Cas 877 = 14 Cal WN 439 and holding that it was Article 148 that applied to a suit by a puisne mortgagee to redeem a prior mortgage decreed redemption. No doubt in that case the suit was filed more than 12 years after the date of the second mortgage. But the question as to whether the puisne mortgagee in that case had a subsisting right to redeem was not specifically considered there. Priya Lal v. Champa Ram, AIR 1923 All 271 (2) was also a suit by a puisne mortgagee for redemption of a prior mortgage. In that case each of the mortgagees had obtained a decree on his mortgage without impleading the other and purchased the mortgagor's right in court auction. It was held that the suit for redemption by the puisne mortgage was governed by Article 148 and not Article 132 of the Limitation Act. In Ram Adhar v. Shankar Baksh Singh. AIR 1935 Oudh 139 it was observed that although a puisne mortgagee's right to recover the mortgage amount would be lost by efflux of time if he omitted to bring a suit for sale or foreclosure within the statutory period of 12 years his ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty and whose right to recover the mortgage money has become barred by limitation cannot be considered as a person who has a subsisting interest in or charge upon the mortgaged property. It is true that Section 28 of the Limitation Act only provides for extinction of right to property where suit for recovery of possession of that property is not filed within the period mentioned in the Act and consequently has no application to omission to file suits for money charged upon property. It is also true that if a mortgagee does not sue for recovery of the mortgage amount due to him within the period fixed in the Act only his right to recover the mortgage amount through suit becomes barred by limitation and that there is nothing in the Limitation Act or any other law to show that his other rights under the mortgage transaction would get extinguished. But has he rights in the mortgaged property other than the right to get the mortgage amount? The right to bring the mortgaged property to sale through court is the essence of the life of a charge. When that is lost by the bar of limitation, if the mortgagee is not in possession of the mortgaged property nothing survives the barred charge ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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