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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.N. Deshmukh, J.
Babu another ... Appellants.
Versus
Digambar others... Respondents.
Second Appeal No. 522 of 1980, decided on 3-2-1988.
Advocates appeared :
N.P. Chapalgaonkar, for appellants.
S.A. Deshmukh, for respondent Nos. 6 7.
REDEMPTION OF MORTGAGE - LIMITATION - ARTICLE 61 OF THE LIMITATION ACT, 1963 - APPLICABILITY - TRANSFER OF MORTGAGED PROPERTY BY MORTGAGEE - VALUABLE CONSIDERATION - PROOF - SALE DEED - NECESSITY.
Fact of the Case:
Plaintiffs filed a suit for redemption of agricultural land mortgaged by their father to defendant No. 1 in 1330 F. The lower courts dismissed the suit holding that the mortgage was not established and that the property belonged to defendant No. 1. The plaintiffs appealed.
Finding of the Court:
The High Court held that the lower courts erred in dismissing the suit on the ground of limitation. It found that the plaintiffs had proved that their father had mortgaged the suit land with defendant No. 1 in 1330 F and that the mortgage continued to exist even after the father took an additional loan of Rs. 1,000/- in 1340 F. The Court further held that the suit was not barred by limitation as the provisions of clause (b) of Article 61 of the Limitation Act, 1963, which applies to transfers by mortgagees for valuable consideration, were not applicable in the present case as the defendants had not produced sale deeds to establish the case of valuable consideration.
Issues: 1. Whether the mortgage of 1330 F was established? 2. Whether the suit was barred by limitation?
Ratio Decidendi: 1. The High Court held that the plaintiffs had proved that their father had mortgaged the suit land with defendant No. 1 in 1330 F. This finding was based on the evidence of the plaintiffs and the admission of defendant No. 1 in his written statement. 2. The High Court held that the suit was not barred by limitation as the provisions of clause (b) of Article 61 of the Limitation Act, 1963, which applies to transfers by mortgagees for valuable consideration, were not applicable in the present case as the defendants had not produced sale deeds to establish the case of valuable consideration.
Final Decision: The High Court allowed the appeal, set aside the judgments and decrees of the lower courts, and decreed the suit of the plaintiffs with costs.
2. The case of the plaintiffs is that the suit property was mortgaged by the father of the plaintiffs with one Digambarrao-defendant No. 1 who subsequently died. This property was mortgaged by executing a mortgage-deed on 20 July, 1330 F for Rs. 1,200/-. The period of mortgage was mentioned as 10 years. The possession of the land was given to deceased Digambarrao-defendant No. 1. The father of the plaintiffs was in need of more amount. Therefore, he took another Rs. 1,000/- from deceased Digambarrao and allowed him to continue in possession as mortgagee. As the mortgage-deed was executed on 20-7-1330 F, no 'document was executed after taking Rs. 1,000/- subsequently. According to plaintiffs, property was mortgaged on 20-7-1330 F and it continued to be in possession even after obtaining additional loan of Rs. 1,000/- before the expiry of period of mortgage according to the mortgage deed.
3. The defendants denied the existence of mortgage and contended that Digambarrao was himself owner of the suit land. He sold the lands to defendant Nos. 4 5 sold the suit lands to defendant No. 7.
4. The learned trial Judge dismissed the suit of the plaintiffs holding that the mortgage dated 20-7-1330 F is not established. It further found that the property belongs to deceased Digambarrao.
5. The plaintiffs thereafter went in appeal before the District Court and the learned Extra Assistant Judge, who heard the appeal, dismissed the appeal of the plaintiffs. Hence, the plaintiffs have filed this second appeal.
6. The learned Counsel Shri Chapalgaonkar, appearing for the appellants-plaintiffs, contended that the suit of the plaintiffs is dismissed only on the ground of limitation. The lower appellate Court has held that plaintiffs have proved that on 20-7-1330 F, their father mortgaged the suit land with deceased defendant No. 1 Digambarrao. In view of this finding recorded by the lower appellate Court according to the learned Counsel the suit should have been treated as filed within the prescribed limitation. His contention will have to be accepted.
7. The case of the plaintiffs is unfortunately not properly appreciated by both the Courts below. The Courts proceeded to appreciate the case of the plaintiffs on the footing that there was a mortgage in the year 1330 F which came to be practically redeemed by efflux of time and a fresh mortgage had taken place in the year 1340 when the father of the plaintiffs took additional loan of Rs. 1, 000/- and as there was no writing executed for second loan transaction and mortgage, the Courts proceeded to consider as if the mortgaged the suit property in favour of defendant No. 1- Digambarrao on 20-7-1330 F before the expiry of mortgage mentioned in the mortgage-deed dated 20-7-1330 F was ceased to exist and the Courts are called upon to consider the mortgage of 1340 F. This was not the case of the plaintiffs at all. The case of the plaintiffs simplicitor was that the father of plaintiffs mortgage deed, the father of the plaintiffs took additional loan of Rs. 1,000/- without executing any writing and allowed the mortgage to continue. The question of executing or creating fresh mortgage in 1340 F, therefore, did not arise. But the property which was already mortgaged continued to remain as mortgaged with possession with defendant No. 1 Digambarrao.
8. The lower appellate Court has rightly held that the plaintiffs succeeded in proving that on 20-7-1330 F the father of the plaintiffs mortgaged suit land with deceased Digambarrao. This is a finding of fact recorded by the lower appellate Court and no cross-objections are filed challenging the said finding. The finding is, therefore, allowed to become final. The lower appellate Court has further held that the plaintiffs are not entitled to re
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