Patel Bhudarbhai
Maganbhai & Anr Vs. Patel Khemabhai Ambaram & Ors [1996] INSC 1598 (11 December 1996)
K. Ramaswamy,
G.T. Nanavati
ACT:
HEAD NOTE:
O R D
E R
This
appeal by special leave arises from the judgment of the learned single Judge of
the Gujarat High Court, made on 24.2.1986 in Second Appeal No.294/78. The first
appellant is the son of Maganbhai. Bai Jivi, widow of Gala mortgaged the
property in 1911 to Kana for 31 years. Bai Jivi died in the year 1955. The
property was succeeded by Hati, daughter of the respondent predecessor in title
in 1965. The respondents filed the suit for redemption of the mortgage.
The
trial Court dismissed the suit but on appeal, the Additional District Judge, Mehsana
decreed the suit holding thus:
"On
the plaintiff depositing Rs.112.50 p. on or before 31st July, 1978 in the Trial
Court, all documents in possession or power relating to mortgaged property and
all such documents shall be delivered over to the plaintiff and defendant No.2
shall if so required recovery or retransfer the said mortgaged property free
from the said mortgage and clear of and free from all encumbrances crated by
defendant No.2 or by any person claiming under him or any person through whom
he claims and also free from all liability whatsoever arising from the
mortgage, and, shall, if so required, deliver up to the plaintiff quiet and
peaceful possession of the said property." In the second appeal it was
confirmed. Thus, this appeal by special leave.
Shri Dholakia,
learned senior counsel for the appellant, contends that in view of the pedigree
of the parties, the appellant is grand-son of Amichand while Hati is a distant
relation represented through Dansang who were sons of Rupsang. Gali is the
grand-son of Jekaran. One of the sons of Rupsang being nearer in relation
within seven degrees the appellant is entitled to a preferential right for
succession than the respondents-predecessor-in-title.
There
is a controversy as to when the widow of Joitaram died. In that behalf, the
appellate Court having considered the entire evidence had concluded thus:
"Hence
Joitaram was entitled to inherit properties of Gala in preference to defendant Bhudarbhai
Magandas and even his father and grand-father who will come in the category of Samandaks.
Looking to the provisions of Baroda Hindu Naibahdh, widow of Joitaram Kashidas,
i.e., mother of Bai Jivi was entitled to inherit the properties of Gala as if
her husband was alive at the time of death of Bai Jivi. That way Bai Hati's
mother was entitled to inherit the properties of Gala on the death of Bai Jivi
as a widow Sagotra Sapindas and that way we an say that Bai Hati's mother
became the owner of the suit property and on the death of bai Jivi Hati's
mother died some time in the year 1965. We can take it that she must have died
after 1.8.1965 and that way she was the absolute owner of the properties when
she died. Bai Hati, thus, be entitled to inherit those properties either under
Baroda Hindu Nibandh or even under the Hindu Succession Act, 1956" In view
of the above finding, we do not find any force in the contention of Shri Dholakia
that the appellant is an preferential heir to the respondent predecessor in
title.
He
further contends that by operation of Article 61(b) of the Schedule to the
Limitation Act, 1963, the appellants- predecessor-in-interest also became the
owner of the property and the right to recover possession from them was barred
by limitation since the suit came to be filed beyond 12 years from the date of
the second redemption of the mortgage. In this behalf, it is necessary to note
a few relevant facts. As stated earlier, Bai Jivi mortgaged the property to
Kana who is a mortgagee. His wife, Shivi appears to have executed a mortgage on
13.5.1935 in favour of one Kuber. Subsequently, in 1965, Bai Shivi filed a suit
O.S. No. No.69/1956 for redemption of the mortgage executed by her on 31.5.1935
and she became the owner of the property.
It is
stated that in assertion of her right as an owner, Shivi executed the mortgage
in favour of Kuber. Her assertion was to the knowledge of predecessor in title
of the respondent and, therefore, the suit or redemption should have been filed
within 12 years from the date of the execution of the second mortgage. Clause
(b) of Article 61 provides that a suit by a mortgagor to recover possession of
immovable property mortgaged and afterwards transferred by the mortgagee for a
valuable consideration, has to be filed within 12 years from the date of which
transfer becomes known to the plaintiff. It is settled legal position that once
a mortgage is always a mortgage until it is duly redeemed within the period of
limitation. It is seen that Bai Jivi or her successor-in interest were not made
parties either to the second mortgage executed on 31.5.1975 or to the suit for
redemption nor any acknowledgement in that behalf has been pleaded or
established. It is also seen that in the plaint the only pleading was that Hati
became aware of the execution of the mortgaged in favor of the second mortgagee
in 1935. It is true that Bai Jivi had knowledge of assertion of any hostile
title either as an owner or of any other title detrimental to her interest and
acquiesced to it; perhaps the contention bears relevance. Bai Jivi had
knowledge of such execution of mortgage though Shivi. On redemption, Shivi
became mortgagee. Obviously, therefore, this contention was not pressed. On the
other hand, the contention in the High Court was that the suit was not filed
within the period of limitation of 30 years, after the Act had come into force.
Relying upon Section 30 of the Act, since it extended the period by seven
years, the High Court held that under the Act after the expiry of 60 years
provided under the old Limitation Act, 1908 and within 30 years and seven
years' extended period, the suit came to be filed on 18th June, 1970. The Act
had come into force on January 1, 1964. Tagging the period of limitation
provided under the Act, namely, 30 years and seven years, the suit was within
limitation. The High Court has held that the suit was not barred by limitation.
In the appellate Court also, two more contentions on limitation which were not
argued before the High Court, were addressed and they were negatived. Since
they have not been repeated here, it is necessary for us to go into these
questions. Considered from this perspective, we think that the High Court was
right in dismissing the second appeal.
The
appeal is accordingly dismissed but without costs.
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