The provisions of Section 68(1)(d), Transfer of Property Act, which gives the mortgagee the right to sue for the mortgage money in case the mortgagor fails to deliver possession of the mortgaged property, do not adversely affect or restrict the terms of a personal covenant to pay contained in the mortgage bond. The mortgagee has the option to either exercise his statutory right under Section 68(1)(d) or to stand by his contractual right under the personal covenant to pay.

JUDGMENT - Gajendragadkar, J.

1. This appeal has been referred to a Division Bench by Mr. Justice shah for the reason that it raises an important question of limitation. The question is whether the plaintiffs right to recover the mortgage amount from the successor-in-title of the mortgagor is barred under Art. 132, Limitation Act. This point has been answered against the plaintiffs by the Courts below relying upon the judgment of Mr. Justice Lokur in -- Dnyanoba Gangaram v. Dattoba Balappa, AIR 1947 Bom 152 (A). When this appeal was argued before Mr. Justice Shah, it was urged before Him that the judgment of Mr. Justice Lokur should be reconsidered in view of the fact that it was apparently inconsistent with the decision of the Privy Council in -- Lasa Din v. Gulab Kunwar, AIR 1932 PC 207 (BJ. That is why Mr. Justice Shah has sent this matter to a Division Bench for disposal.

2. The facts on which the point of limitation arises can be very briefly stated at the outset. The property in suit originally belonged to one Shidra-mappa, who died on 31-12-1915. After his death the title to this property vested in Balappa, who was then a minor. Gurushiddawa, who was act ing as the de facto guardian of Balappa and as such was managing his properties, executed the mortgage in suit on 12-10-1927, for Rs. 800. The amount for which the mortgage was executed represented a past debt due by Shidramappa in respect of the sari business which he was carrying on during his lifetime. The mortgage deed purported to be a possessory mortgage. It also contained a specific covenant to repay the mortgage amount within five years.

In the present suit which was instituted by the plaintiffs on 30-8-1948, it was alleged that- the mort gagee had allowed the mortgagor to remain in possession as his tenant, that the tenancy continued until 12-10-1933, and so it was claimed that the present suit for possession of the mortgaged property was in time. In the alternative a claim to recover the mortgage amount was made. The defendants resisted both the claims on several grounds. It was urged by them that the mortgage was not for a legal necessity, nor for the benefit of the minor Balappa, that the lease alleged by the mortgagee had never been executed and that in fact the mortgagee had never obtained possession, that the claim for possession as well as the claim to recover the mortgage amount were barred by limitation.

It has been held by both the Courts below that though the mortgage was for the benefit of the minor Balappa, the mortgagees claim to recover possession was barred by limitation because the case of tenancy set up by him had not been proved. Both the Courts have also held that the mortgagees claim to recover the mortgage amount was also barred under Article 132, Limitation Act. In the present appeal Mr. Datar for the appellants does not challenge the conclusion of the Courts below that the plaintiffs suit for possession of the mortgaged properties is barred by time. He, however, contends that the Courts below were wrong in holding that the plaintiffs claim to recover the mortgage amount was barred by time under Article 132, Limitation Act. That is how the only question which arises for decision in this appeal is whether the Courts below were right in dismissing the plaintiffs claim to recover the mortgage amount on the ground that it is barred by time.

3. In dealing with this question of limitation we have to bear in mind the fact that the mortgagee was entitled to obtain possession from the mortgagor and possession in fact had not been delivered to him. The contention of the defendants is that as soon as the mortgagee found that the mortgagor was committing a default in delivering possession of the mortgaged property to him, it was his right and his obligation to sue for the mortgage amount. This contention is raised on the strength of the provisions of Section 68(1)(d), Transfer of Property Act. Section 68 provides for the right of the-mortgagee to sue for

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