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M. A. ABDUL HAKHIM
K. Sarasamma, W/o. Madhava Pillai – Appellant
Versus
Valli Amma Rudrayani Amma, (Died) Lhs. Recorded – Respondent
JUDGMENT :
(M.A. Abdul Hakhim, J.)
1. The appellants are legal heirs of the deceased 1st defendant in the suit. The suit - O.S No.383/1980 was filed before the Munsiff’s Court Neyyattinkara for declaration of title and possession, for redemption of mortgage, recovery of possession, consequential injunction and for fixation of boundary. The relief of fixation of boundary was sought with respect to Plaint A schedule property having an extent of 76 cents as against the 2nd defendant. The relief of redemption of mortgage was initially sought with respect to Plaint B schedule property having an extent of 32 cents and Plaint C schedule property having an extent of 25 cents from the 1st defendant. Later, the relief of redemption of mortgage of E schedule property having an extent of 14 cents from the 1st defendant was also included by way of amendment as per Order dated 06.11.1986 in I.A No.4254/1986. In the said order, in view of the objection raised by the 2nd defendant, the Trial Court observed that the right of the 2nd defendant to contend that the relief of redemption of plaint E schedule is barred by limitation is reserved. Plaint B, C and E properties are parts of the Plaint A sched
Amendments to a suit relate back to the original filing date, but claims must still comply with limitation periods; a mortgage's nature determines the relationship of parties as debtor and creditor.
A usufructuary mortgagor can redeem the mortgage at any time; the right is not extinguished by the passage of 30 years, as affirmed by the Supreme Court.
Point of law: Rightly observed by both the Courts below the evidence let in by the appellants to establish this oral sale, gets excluded in view of the prohibition under Section 92 of the Indian Evid....
The plaintiffs' suit was barred by law of limitation and estoppel, and the substantial questions of law raised by the plaintiffs were rejected.
Possession of mortgagees in land disputes is deemed permissive, ceasing to be adverse post-mortgage extinguishment under relevant Acts, hence limitations governed by those acts apply.
A suit for pre-emption must be filed within one year from the date of sale registration; delays bar the action under Article 97 of the Limitation Act.
Article 62 of the Limitation Act, 1963 provides that a suit to enforce payment of money secured by mortgage can be filed within 12 years, when the money sued for becomes due.
The rights of a usufructuary mortgagee do not crystallize into a title without payment of the mortgage debt; thus, a suit for declaration is unsustainable once the right to redeem is extinguished.
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