Jahansaheb Muslhuddin Dundge vs Sadroddin Imamsaheb Pinnitod and Others

K. Sreedhar Rao, J.—This appeal filed against the judgment and decree passed in R.A. No. 46 of 1997 on the file of Civil Judge, Senior Division, Gokak, arising out of the judgment and decree passed in O.S. No. 134 of 1979 on the file of Additional Civil Judge, Junior Division, Raibag.

The appellants are plaintiffs, filed a suit for redemption of the mortgage of the suit schedule property. The facts disclosed that a registered mortgage deed was executed on 10-6-1940 by the defendant 8-Masaluddin Jahansaheb Pinnitod in favour of the father of the defendants 1 to 6. Under the terms of mortgage it was agreed that the mortgagor shall not redeem for a period of five years from the date of mortgage and thereafter, the mortgage amount if tendered, the delivery of possession of the mortgaged property, shall take place and only after Chaitrapadya day obviously to enable the mortgagees to harvest the crop and to deliver possession, the suit was filed in the year 1978 for redemption of the mortgage. The Trial Court decreed the suit and granted the relief of redemption and directed delivery of possession to the plaintiffs. The Appellate Court set aside the judgment and decree of the Trial Court and dismissed the suit on the ground of limitation. Aggrieved by the judgment of the Appellate Court, the second appeal is filed and the following point is formulated for consideration:

"(1) Whether the Court below was justified in reversing the judgment and decree passed by the Trial Court on the ground of limitation without taking into consideration the facts and circumstances of the case?"

The terms of the document as narrated above indicate that the parties intended that there shall not be redemption for the first five years of the mortgage. Thereafter, any time the mortgagor is entitled to redeem the mortgage but the delivery of possession was contemplated to be given after the Chaitrapadya of the year, which is a Chandramana Ugadi day, a Hindu festival, by which date, normally the crops on the land would be harvested. It is the contention of the Counsel for the appellant that in the case of usufructuary mortgage the period of limitation commences only when the amount is tendered and the mortgagee refuses to redeem the property. In that view, he contended that the limitation would not commence unless and until the amount is tendered and refused by the mortgagee. I am unable to agree with the contention.

The Supreme Court in Sampuran Singh and Others Vs. Smt. Niranjan Kaur and Others, has held that the period of limitation starts from the very first date of a valid mortgage, has held thus in para 11:

"We have already recorded that the period of limitation starts the very first date of a valid mortgage. Court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restrain in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathumma and Others Vs. V.S. Kadambolithaya and Others, ".

In the present case, there was an agreement between the parties against the right of redemption for a period of five years from the date of mortgage. Therefore, the right to redeem would accrue from 10-6-1945. The delivery of possession of the land after the period of mortgage commences only after Chaitrapadya, is nothing to do with the right of redemption on the part of the mortgagees nor the said stipulation can be construed as a clog on the right of redemption. The present suit is filed in the year 1978 beyond the period of thirty years. Therefore, the suit filed for redemption is clearly barred by time. I do not find any illegality in the view of the Appellate Court in setting aside the judgment and decree of the Trial Court. Accordingly, I answer point (1) formulated in the affirmative.

Accordingly, the appeal is dismissed.