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1963 Supreme(Bom) 78
IN THE HIGH COURT OF BOMBAY
Chitale M.G. J.
Appellants: Manik Sadashiv and Ors.
Vs.
Respondent: Krishnabai and Ors.
A.F.A.D. No. 171 of 1957
Decided On: 24.09.1963
Counsels:
For Appellant/Petitioner/Plaintiff: C.P. Kalele, Adv.
For Respondents/Defendant: G.R. Mudholkar, Adv.
The starting point of limitation for a suit for contribution is the date on which the plaintiff redeemed the mortgage, not the date when the mortgage amount became payable.
Headnote:
LIMITATION - CONTRIBUTION - ARTICLE 132, LIMITATION ACT - STARTING POINT - SUBROGATION - SECTION 92, TRANSFER OF PROPERTY ACT - DISTINCTION - RIGHT OF CONTRIBUTION INDEPENDENT - STARTING POINT OF LIMITATION - DATE OF PAYMENT AND REDEMPTION OF MORTGAGE.
Fact of the Case:
Plaintiffs purchased a portion of mortgaged property from mortgagors and agreed to pay the mortgagee Rs. 750/- out of the sale consideration. The mortgagee agreed to settle his dues for Rs. 750/-. Plaintiffs paid Rs. 825/- to the mortgagee and redeemed the whole mortgage. Plaintiffs filed a suit for contribution against the defendant, who was a co-occupant in the mortgaged property, more than 12 years after the mortgage amount became payable.
Finding of the Court:
The suit was held to be within limitation. The starting point of limitation under Article 132 of the Limitation Act for a suit for contribution is the date on which the plaintiff redeemed the mortgage, not the date when the mortgage amount became payable. The right of contribution is independent of the right of subrogation conferred by Section 92 of the Transfer of Property Act.
Issues: Whether the suit for contribution was barred by limitation.
Ratio Decidendi: The right of contribution is a right independent of the right of subrogation conferred by Section 92 of the Transfer of Property Act. Thus, while considering the question of limitation in such cases, the important point for consideration would be "what is the nature of the claim in the suit?" That is to be decided on the allegations in the plaint. If the allegations in a plaint indicate that it is a suit to enforce rights similar to those of the mortgagee, in that case it is obvious that the plaintiff cannot have higher rights than the mortgagee, even though the plaintiff may have a right of subrogation under Section 92 of the Transfer of Property Act. If, however, the allegations in the plaint indicate that the plaintiff is seeking to enforce his right to claim contribution, along with his right to enforce the charge arising in his favour under Section 100 of the Transfer of Property Act, the starting point of limitation would obviously be different and that would be the date on which the plaintiff in such a suit made payment and redeemed the mortgage.
Final Decision: Appeal allowed, decree of the lower appellate Court set aside, and plaintiffs' claim decreed to the extent of Rs. 400/- with future interest from the date of the suit at Rs. 6/- per cent per annum. Charge for the decretal amount on survey No. 116/1. Defendant to pay plaintiffs two-third costs throughout. Cross-objections dismissed.
2. The defendant contested the suit on various grounds. So far as this appeal is concerned, the only important contention is that the suit is barred by limitation.
3. Both the trial Court as well as the lower appellate Court have held that the present suit is barred by limitation under Article 132 of the Limitation Act, the starting point of limitation being the date on which the mortgage amount became payable. It is against this decision that the present second appeal is filed by the plaintiffs.
4. It is common ground that Article 132 of the Limitation Act applies to the present suit. The only dispute is what would be the starting point of limitation. The starting point of limitation mentioned in Article 132 is "when the money sued for becomes due". On the allegations in the plaint, it is quite clear that the present suit is one for contribution and not for recovery of an amount due under a mortgage. If this is a suit for contribution prima facie the cause of action would take place when the plaintiffs paid the amount due to the mortgagee and redeemed the mortgage. It could not in any case be earlier than that. It is obvious that unless the amount due under the mortgage was paid and the mortgage was redeemed by the plaintiffs, there could be no question of the plaintiffs claiming contribution. The defendant, however, contends that under Section 92 of the Transfer of Property Act a person in the position of the plaintiffs is subrogated to the rights of the mortgagee, he has the same rights as the mortgagee, hence the suit must be within twelve years from the date when the amount due under the mortgage became payable.
5. On behalf of the respondent-defend ant Mr. Mudholkar relies on a decision of the Privy Council, viz. Mahomed Ibrahim Hossain Khan v. Ambika, Persad Singh, 39 Ind App 68 (PC). The observations relied upon are as follows:
"But as the Rs. 12,000 were under the zarpeshgi deed of November 20, 1874, repayable in Jeth 1294 Fasli (September, 1887) and this suit was not brought until September 22, 1900, the claim of the plaintiffs to priority is barred by Article 132 of the Second Schedule of the Indian Limitation Act, 1877, and all that they are entitled to so far as the 5 annas 4 pies share in Fat
