A mortgage's validity and limitation period must adhere strictly to stipulated terms in the mortgage documentation, with no extensions permitted under anomalous mortgages.

ORDER :

C.PRATHEEP KUMAR, J.

The review petitioners are appellants 5 to 14 in A.S. No. 132 of 2003, on the file of this court. They are the legal heirs of the 2nd plaintiff in OS No. 79 of 1989, on the file of the Subordinate Judge's court, Tirur, who was the 1st appellant who died during the pendency of the appeal. The above suit was filed for partition of the suit property, having an extent of 66.5 cents. The respondents 1 to 10 in the review petition are defendants 2 and 4 and persons claiming under the 3rd defendant. Respondents 11 and 12 are the legal representatives of deceased appellant no. 3. Respondent Nos. 13 to 19 are the legal representatives of the deceased 2nd appellant, the 3rd plaintiff in the suit.

2. The plaint schedule property originally belonged to the father of the plaintiff and the 1^st defendant. After the death of the father, the property was held by the plaintiff, his brother Bhavachi and mother Pathoma Umma, by virtue of the release deeds executed by the other siblings including the first defendant. Subsequently, mother Pathoma Umma, as per Ext.A3 released her right in the scheduled property in favour of the plaintiff and his brother Bhavachi. Accordingly, the plaintiff and his brother Bhavachi became absolute owners of the property. Thereafter, Bhavachi died without any issues and the right of Bhavachi over the scheduled property devolved upon the plaintiff and his sister, the first defendant, in the proportion 2:1, as the mother and all other siblings have died in the meanwhile. Therefore, the share of the plaintiff and the first defendant over the entire plaint scheduled property was 5/6 and 1/6 respectively. In the year 1937, the plaintiff, his deceased brothers Bhavachi and Chekkutty, together with the deceased mother executed Exhibit B1 mortgage with respect to the scheduled property in favour of the 1^st defendant. According to the plaintiff, though Exhibit B1 mortgage deed was executed, it was never intended to be acted upon and such a document was executed only to save the property from being proceeded against, in execution of a decree obtained by a third party. The plaintiff also contended that, in spite of Exhibit B1 mortgage, possession of the scheduled property was not handed over to the first defendant. When the plaintiff’s request for partitioning the scheduled property was rejected by the first defendant, the present suit was filed.

3. The trial court found that Exhibit B1 is a valid mortgage. Ext.B1 is dated 21.06.1937. The period prescribed in Exhibit B1 mortgage deed was 2 years. The plaintiffs filed the suit for partition only on 25.08.1989. The trial court found that since the period of the mortgage as stipulated in Exhibit B1 is 2 years, the suit ought to have been filed within a period of 30 years from 21.06.1939, that is, on or before 21.06.1969. Since the suit was filed only on 25.08.1989, the trial court held that the suit is hopelessly barred by limitation and accordingly, dismissed the suit, as per judgment dated 26.6.1992. Aggrieved by the above judgment and decree of the trial court, the plaintiff preferred A.S. No. 168 of 1993 before this Court.

4. In appeal, the plaintiffs have taken two additional contentions. One of the contentions is that, on the death of Bavachi, the 1^st defendant obtained 1/6 share in the right of equity of redemption and thereby there was merger of her mortgage right with 1/6 right of equity of redemption and that, therefore the mortgage is not subsisting. The other contention taken is that Exhibit B1 is an anomalous mortgage, though it is titled as an usufructory mortgage. As per judgment dated 19.10.2001, this court found that Ext.B1 is an anomalous mortgage. Regarding the contention of merger of the right of the first defendant with her right in the equity of redemption, this Court found that there was no evidence regarding the date of death of Bavachi, to ascertain whether she died before 21.6.1969, the date of expiry of 30 years. Therefore, the mat