Judgement

Consolidated Appeals from a judgment and decree of the High Court (November 11, 1907) reversing a judgment and decree of the Subordinate Judge of Cawnpore (January 4, 1904).

The suit which gave rise to the appeals was commenced by the respondent on January 6, 1899, and was to redeem a mortgage of twelve villages made on January 4, 1830. The mortgage in question was made by conditional sale, there being a sale with possession to the mortgagee, subject to a condition that the sale should " be cancelled upon payment of the amount of the mortgage in nine years." The actual mortgage deed was not forthcoming, but the above terms appeared from a Proceeding of the Collectors Court of 1830.

The plaintiffs by their plaint alleged that the terms of the mortgage as agreed were that whenever the mortgage money should be satisfied (out of the usufruct) or paid (by the mortgagors) before or after the stipulated time the mortgaged property should be redeemed; also that the principal and interest had been paid at the end of 1245 Fasli, namely, by September 4, 1838.

The defendants, among other defences, relied on the Limitation Act, 1877, and pleaded that the suit was barred.

Five of the villages had been mortgaged by the original mortgagees successor in title; this mortgage purported to be of the full proprietary interest and was foreclosed about 1872, and the villages now formed part of the property of an idol, represented in the second appeal by Jamna Narain, a respondent.

The Subordinate Judge, by his judgment delivered on January 4, 1904, dismissed the suit, being of opinion that the sixty years period of limitation provided by the Limitation Act, 1877, Sched. II. Art. 148, ran from the date of the mortgage, January 6, 1830. As to the five villages he held that the suit was also barred either under art. 134 or art. 144 of that schedule.

The High Court, on appeal, delivered its judgment on April 16, 1907. The learned judges (Stanley C.J. and Burkitt J.) were of opinion that, under the terms of the mortgage, the mortgagee could not redeem during the period of nine years mentioned, that consequently the period of limitation under art. 148 did not begin to run until January 6, 1839, and the suit was not barred under that article. With regard, however, to the five villages they held that art. 134 of Sched. II, applied and that the suit could not be sustained as to them. The case was accordingly remanded to the Subordinate Judge for inquiries and accounts, and subsequently, on November 11, 1907, a formal decree was made in accordance with this judgment.

The defendant, the successor in title of the original mortgagee (represented by the appellant Bakhtawar Begam), appealed as to the seven villages, and the plaintiff appealed as to the five villages.

De Gruyther, K.C., and Dube, for the appellants in the first appeal. The whole suit is barred under the Limitation Act, 1877, Sched. II. Art. 148. In the absence of express words excluding the right to redeem, the mortgagor was entitled to redeem the mortgage during the nine years. Moreover, that this was the real intention and agreement of the parties appears from the plaint, which also states that the whole principal and interest were repaid by September 4, 1838. The right to redeem, there fore, first accrued at that date and the sixty years allowed by the above article expired before the suit was commenced. The principle embodied in s. 62 of the Transfer of Property Act, 1882, should be applied. Further, seeing that the plaint itself shewed that the claim was barred under art. 148, the Court of the Subordinate Judge should have rejected it having regard to the Code of Civil Procedure, 1882, ss. 50 and 54 (c), and the Limitation Act, 1877, s. 4. The provisions of s. 54 (c) are mandatory, not permissive.

Sir Erle Richards, K.C., and Ross, K.C., for the respondent in the first appeal. Both Courts have held that the terms of the mortgage are those contained in the Proceeding of the Revenue Co