Satnam Singh alias Shamsher Singh and Others vs Roshan Lal and Others

D.V. Sehgal, J

Smt. Harnam Kaur, mother of the Plaintiff-Appellants, mortgaged the suit land with possession for a sum of Rs. 1000/- vide registered mortgage deed dated 1-2-1943 Ex. D-1 with Gurditta, Bhan Singh and Harinder Singh predecessors-in-interest of the Defendant-Respondents. It was stipulated therein that she could redeem the mortgage in the month of Magh in any year. She executed the second mort gage deed dated 1-12-1943 Ex. D-3 with the same mortgagees for a sum of Rs. 900/-. It is also not in dispute that she received a sum of Rs. 28 annas 4 and 6 paiees from the mortgagees on 1-2-1943. Thus the total amount due from her which in terms of the mortgage deed Ex. D-3 she was to pay before she could redeem the mortgages and secure back the possession of the suit land was Rs. 1928-4-6 paiyees. The Plaintiffs filed a suit on 11-2-1974 for redemption of the martgages represented by the deeds Exs. D-1 and D-3 and for possession of the suit land which was decreed by the learned trial Court after recording a finding that the Plaintiffs were required to pay Rs. 1928-4-6 paiyees. The Defendants filed an appeal which has been allowed by the learned Additional District Judge, Hoshiarpur, vide judgment and decree dated 18-8-1977 holding that the suit of the Plaintiffs were barred by time. The judgment and decree of the learned trial Court was, thus, set aside and the suit of the Plaintiffs was dismissed. Leaving the parties to bear their own costs. The Plaintiffs thus filed the: present regular second appeal in this Court.

Mr. A. N. Mittal, the learned Counsel for the Appellants, by referring to the judgment of the learned Additional District Judge has contended that the learned first appellate court while determining the period of limitation for filing the suit had taken into consideration only the first mortgage deed dated 1-2-1943 Ex. D-1 and had thus wrongly held that since a period of 30 years from the date of execution of deed Ex. D-1 had expired on 1-2-1973, the suit filed on 11-2-1974 was barred by time. He rightly pointed out that in the subsequent mortgage deed dated 1-12-1943 Ex. D-3 it is specifically provided that the mortgagor could redeem the mortgage on payment of the entire amount of the two mortgages Ex. D-1 and D-3. Thus according to him, the right to redeem the mortgages on payment of the entire amount represented by the two mortgage deeds became available in the month of Magh following 1-12-1943. It is not in dispute that the month of Magh generally starts from 14th of January every year and ends on 11th of February. Thus, he submits that the right to redeem the mortgage first accrued to the mortgagor on 11-2-1944-the last date of the month of Magh following 1-12-1943. Thus, the suit filed on 11-2-1974 being within 30 years, the time prescribed for redemption of mortgage under Article 61 of the Schedule to the Limitation Act, 1963, was within time.

Mr. Nehra, the learned Counsel for the Respondents, contended that even on accepting that the right to redeem the mortgage first accrued to the mortgagor in the month of Magh following the second mortgage deed dated 1-12-1943, the limitation for filing the suit for redemption expired on 14-1-1974 because the first day when the right to redeem the mortgage became available to the mortgagor was 14-1-1944. Mr. Nehra contended that as regards the first mortgage, its deed was executed on 1-2-1943. Therefore, the right to redeem this mortgage accrued to Smt. Harnam Kaur in the month of Magh falling in the year 1943 and as such the suit in respect of the first mortgage was dicidedly beyond the expiry of the period of 30 years and was, therefore, barred by time. He next contended that even on accepting that the right to redeem the mortgage first accrued to the mortgagor in the month of Magh following the second mortgage deed dated 1-12-1943, the limitation for filing the suit for redemption expired on 14-1-1974 because the first day when the right to redeem the mortgage became available to the mortgagor was the first day of the month of Magh which corresponded to 14-1-1944. In support of this contention, he placed reliance on AIR 1949 389 (P & H.) .

I have given my thoughtful consideration to the rival contentions of the learned Counsel for the parties and I have reached at the conclusion that this appeal must succeed. As regards the first contention of the learned Counsel for the Respondents all that need be mentioned is that when there is a transfer of an interest in immoveable property by way of mortgage, then all the advances of money which may have been made both prior to the date of the mortgage or subsequent thereto would be covered by it. In such cases, one mortgage covers all such advances. This result follows from the definition of the word "mortgage" in Section 58 of the Transfer of Property Act and the limitation runs from the date of the last advance so made. The first mortgage dated 1-2-1943, therefore, merged in the second mortgage and even according to the language of the mortgage deed Ex. D-3 the entire amount of loan of the first as also the second mortgage was required to be paid while redeeming it.

The second contention of the learned Counsel for the Respondents though attractive at its face loses substance when the matter is studied in depth. The question with regard to the starting point of limitation for an action by the mortgagor to redeem the mortgage and by a mortgagee to have it foreclosed was considered by the Privy Council in AIR 1932 207 (Privy Council) and it was held that the mortgage money does not became due within the meaning of Article 132 of the Limitation Act, 1908 (which now corresponds to Article 62 of the Limitation Act, 1963), until both the mortgagor''s right to redeem and the mortgagee''s right to enforce his security have accrued. Their Lordships held that this would of course also be the position if the mortgagee exercised the option reserved to him. Lasa Din''s case was followed by a Division Bench of the Calcutta High Court in Durga Prosad Charnaria Vs. Mario Galstaun and Others, and it was held that the mortgage money does not become due until both the mortgagor''s right to redeem and the mortgagee''s right to enforce his security have accrued. In other words, the mortgage money would become due when both the rights of the mortgagee to sue and of the mortgagor to redeem would coalesce. A Division Bench of this High Court in Hargudial Singh Dhian Singh Vs. Des Raj Lachman and Others, , also followed Lasa Din''s case, and it was observed with approval that mortgage money does not become due within the meaning of Article 132 of the Limitation Act, 1908 until both the mortgagor''s right to redeem and the mortgagee''s right to enforce his security have accrued. When the principles of law deduced from the above case law are applied to the present case, it becomes clear that the right to the mortgagee to file a suit for foreclosure of the mortgage accrued due only after the last day of the month of Magh in the year 1944, i.e. on 12-2-1944 on the expiry of the last day of the month of Magh on a day succeeding 11-2-1944. Correspondingly, therefore, the right to redeem the mortgage by the mortgagor accrued to her on the same date, i.e. 11-2-1944 as the starting point of limitation for enforcing these corresponding rights must coalesce. The suit filed by the Appellant for redemption of the mortgage on 11-2-1974 is, therefore, within time. The finding recorded to the contrary by the learned Additional District Judge, Hoshiarpur, is therefore reversed.

Consequently, this appeal is allowed. The judgment and decree of the learned Additional District Judge, Hoshiarpur, are set aside and the judgment and decree of the learned trial Court whereby the Appellant''s suit was decreed are restored. There shall, however, be no order as to costs. R.M.S. Appeal allowed.