Suit for redemption filed within time.

(PRAYER : Appeal against the judgment and decree of the learned Sub Judge, Namakkal dated 3.10.1997 made in A.S. No.73 of 1989 preferred against the judgment and decree of the learned Principal District Munsif, Namakkal dated 31.3.1989 made in O.S. No.520 of 1981.)

Prabha Sridevan, J.

The mortgagees/defendants have filed this appeal against the order of remand.

2. The plaint case is hereunder :

The grandmother of the first plaintiff one Kulsam Bi created an usufructuary mortgage in favour of her daughter Kathun Bi in the year 1941. As per the terms of the deed, the mortgagee would be in possession of the properties and enjoy the usufructs in lieu of interest; the period stipulated for repayment of the debt was four years from 10.8.1941; it was open to the mortgagor to repay the amount earlier; upon such repayment, the mortgagee was bound to give back possession of the property; and if after the period of four years, the mortgagee demanded the amount, the mortgagor was bound to pay the principal and get back the properties. The mortgagor died and some of her legal heirs filed the suit for a declaration that plaintiffs 2 to 13 and defendants 3 to 6 are the owners of the suit property, for recovery of possession from defendants 1 and 2 and for mesne profits. There were other heirs of the mortgagor who did not co-operate with the plaintiffs and therefore, they were arrayed as defendants. The suit was filed in the year 1979. Paragraph 7 of the plaint deals with the question of limitation. The plaintiffs took protection under the Tamil Nadu Debt Relief Act 38 of 1972, by which any mortgage debt subsisting on that date would stand wholly discharged with effect from 15.12.1972 and since the mortgagors would have 30 years under Article 61 of the Limitation Act, 1963 from the date of discharge, the suit filed in the year 1979 was in time.

3. The defendants 1 and 2, in their written statement, pleaded that the time for redemption of the mortgage was fixed as four years and that it expired on 10.8.1945; the protection of Act 38 of 1972 cannot be invoked and as per the new Limitation Act, viz. Act of 1963, the plaintiffs' right of redemption got extinguished on 1.1.1970; the relationship of mortgagor and mortgagee ceased on and from 1.1.1970; Act 38 of 1972 applied only to mortgagees who are in possession as mortgagees on the date when it came into force; since on 15.12.1972, possession of defendants 1 and 2 was not in their capacity as mortgagees, the plaintiffs cannot claim the benefit of the Act.

4. The trial court dismissed the suit on the ground of limitation and it also held that the plaintiffs were not entitled to the protection of Act 38 of 1972. The trial court did not go into any of the other issues having dismissed the suit on the preliminary issue of limitation. The appellate court passed an order of remand, setting aside the judgment and decree on the conclusion that the suit was not barred by limitation and that the plaintiffs are entitled to invoke the protection of Act 38 of 1972. Aggrieved by this, the present appeal been filed.

5. Learned counsel Mr. G. Desappan 5 appearing for the appellants would submit that Article 61 of the Limitation Act, 1963, which deals with suits by a mortgagor to redeem or recover possession of an immovable property, gives the mortgagor thirty years from the date when the right to redeem or recover possession accrues. As per Section 60 of the Transfer of Property Act, 1882, the mortgagor has a right to redeem the mortgaged property 'at any time after the principal money has become due'. In the mortgage deed, the recitals are,

Learned counsel for the appellants would submit that notwithstanding the fact that the mortgage deed begins with the words. fixing a four year period for the mortgage, since the mortgagor had the right to pay the money at any time even within the period of four years, his right to redeem started from the date on which the mortgage deed was executed, which is 10.1.19