1. Mortgage suit — Possession regained by mortgagor — Suit for redemption filed after delivery of possession to mortgagee — Limitation period. (Para 1 , 2 , 3 )
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2000 Supreme(SC) 1629
SUPREME COURT OF INDIA
D.P.Mohapatra : M.B.Shah
Ahilyabai
Versus
Shantabai
Case No. : 3770 of 1988
Date of Decision : 10/10/00
Under Article 61(a) of the Limitation Act, 1963, the 30-year limitation period for a mortgagor to recover possession accrues only when the right to recover possession arises, which is the date actual possession is legally transferred to another party.
Headnote:(A) Limitation Act, 1963 - Article 61(a) - Suit by mortgagor for redemption or recovery of possession of immovable property - Limitation period of 30 years - Accrual of right to recover possession - Where mortgagors remained in possession of the property until it was handed over to another party in execution of a decree, the right to recover possession accrues only on the date of such delivery - A suit filed subsequently is not barred by limitation. (Para 4)
Facts of the case:
A mortgage deed was executed for a specified sum, and the mortgagee remained in possession of the property until death. Subsequently, the mortgagor recovered possession and continued to hold the property for several decades. The legal heir of the mortgagee filed a suit for recovery of possession, which was eventually decreed, and possession was handed over to the respondent on a specific date. Shortly after the delivery of possession, the appellants filed a suit for redemption and possession, which the courts below dismissed as being barred by limitation.
Findings of Court:
The courts below erred in dismissing the suit as time-barred without considering that the appellants were in possession of the property until the date of its delivery to the respondent. Since possession was delivered on a specific date, the cause of action to recover possession accrued only on that date.
Issues: Whether the suit for redemption and possession of the mortgaged property was barred by the period of limitation under Article 61(a) of the Limitation Act, 1963, given the mortgagors' continued possession until the delivery of the property to the respondent.
Ratio Decidendi: The court held that under Article 61(a) of the Limitation Act, 1963, the 30-year limitation period for recovering possession begins when the right to recover possession accrues. As the appellants remained in possession until the property was handed over to the respondent pursuant to a decree, the cause of action arose only on the date of such delivery. Therefore, a suit filed after that date is within the limitation period. (Para 4)
Result: Appeal allowed. The impugned judgment and decree passed by the courts below dismissing the suit is set aside. The suit for redemption and possession of the mortgaged property is decreed on the condition that appellants shall deposit the mortgage amount within a period of three months.
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Table of Contents
2. Limitation bar dismissed by courts below — Appellants continued possession until delivery to respondent — Right to recover possession accrued only on that date. (Para 3 , 4 )
3. Court found that right to recover possession accrued when possession was delivered to respondent, not earlier. (Para 4 )
4. Under Article 61(a), Limitation Act, 1963, suit for redemption accrues only when mortgagor loses possession, not earlier. (Para 4 )
5. Appeal allowed; decree of courts below set aside; suit decreed on condition of deposit of mortgage amount within three months. (Para 6 )
6. When does the right to redeem or recover possession of mortgaged property accrue under Article 61(a) of the Limitation Act, 1963?
The right accrues when the mortgagor loses possession of the property, not before such loss of possession. (Para 4 )
7. Does a mortgagor in possession need to file a suit for redemption before losing possession?
No, a mortgagor in continuous possession has no cause of action to file a suit for redemption until possession is actually lost. (Para 4 )
JUDGMENT
D.P.MOHAPATRA, J.
(1) THIS appeal is filed against the judgment and decree dated 26/3/1985 passed by the High Court of Karnataka at Bangalore in regular Second Appeal No. 932 of 1984 confirming the decree passed by the Principal Munsiff, Bijapur, in Original Suit No. 331 of 1981. All the courts below dismissed the suit filed by the appellants on the ground that it was barred by the period of limitation.
(2) FOR deciding the contention whether the suit was barred by limitation, we would first refer to a few admitted facts. It is the contention of the parties that the original mortgagor, Dhondiba Subarao Mahindrakar was the owner of the suit property situated at Bijapur city, Bijapur. He executed a mortgage deed on 10/7/1933 in favour of his brother Hanamanth Subarao Mahindrakar for a sum of Rs. 2,500.00. As recorded by the High Court, the mortgaged amount was to be repaid within five years and the mORTGAGEE was to enjoy the property free of rent; that in case the mortgaged amount was not paid, the mORTGAGEE would continue in possession on the same terms till the amount came to be paid; in case the mORTGAGEE needed the amount and demanded the same from the mortgagor and the mortgagor failed to pay, the mORTGAGEE was to foreclose the mortgage and recover the same and so on.
(3) THE mORTGAGEE, Shri Hanamanth Subarao Mahindrakar enjoyed the property till his death i.e. 30/1/1942. It is also an admitted fact that since 30/1/1942 mortgagor recovered back the possession and continued with the same till 31/8/1981. In 1962 respondent filed a civil suit for recovering the possession of the properties by contending that she was legal heir of the mortgagee. The suit was finally decreed on 19th March, 1981 as R.S.A 252 of 1980 filed by the present appellants, was dismissed by the High Court and on the basis of the said decree, possession of the suit property was handed over to respondent on 31/8/1981. As the possession of the property was handed over to respondent, appellants filed the present suit i.e. O.S.A. No. 331 of 1981 on 11/12/1981 before the Munsiff Court at Bijapurfor redemption and possession of the suit property. The suit has been dismissed on the ground that it is barred by limitation.
(4) IT appears that before dismissing the suit as time barred, the courts below have not considered the relevant fact that appellants admittedly remained in possession of the suit property till 31/8/1981. Article 61 (a) of the Limitation Act, 1963 provides that a suit by mortgagor to redeem or recover possession of immovable property mortgaged is to be filed within a period of 30 years "when the right to redeem or recover possession accrues". In the present case as the appellants were in possession from 1942 onwards till 31/8/1981, there was no question of filing suit for recovering the possession of the mortgaged property. However, as the suit filed by the respondents in 1962 for recovering the possession, was finally decreed in their favour and the possession was delivered to them, on 31/8/1981, the right to recover the possession accrued. Before that date, cause of action to recover the possession had not accrued. Therefore, it cannot be said that the suit filed by the present appellant on 11/12/1981 was barred by period of limitation.
(5) IN this view of the matter, in our view, it is not necessary to consider the provisions of Section 14 or any other provision of the Limitation Act. It is also not necessary to consider the contention based on the facts that the mortgage deed specifically provides that mORTGAGEE shall continue to be in possession as such till the amount is repaid. In case the mORTGAGEE needed the amount and demanded the same and the mortgagor failed to pay the same, the mORTGAGEE had the right to foreclose the mortgage and to recover the same. No other contention was raised before the High Court or the Appellate Court. Therefore, there is no question of dealing with the same
