IMPORTANT POINT
In usufructuary mortgages, the limitation for redemption begins only upon payment of the mortgage debt, not upon the expiry of the redemption period.

JUDGMENT :

S. SOUNTHAR, J.

Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree, dated 11.06.2001, passed in A.S. No. 165 of 2001 on the file of Subordinate Judge, Aruppukkottai, confirming the judgment and decree, dated 14.06.2000, passed in unnumbered plaint of 2000 on the file of District Munsif Court, Aruppukkottai.

1. The plaintiff in the suit is the appellant. The suit was filed for redemption of usufructuary mortgage. The plaint was rejected by the trial Court on the ground of limitation. The appeal filed by the plaintiff was also dismissed by the first appellate Court, affirming the findings of the trial Court. Aggrieved by the same, the plaintiff is before this Court.

2. According to the appellant/plaintiff, the suit property originally belonged to one Kandasamy Panicker. The plaintiff and the defendants 1 to 6 were the persons claiming under the said Kandasamy Panicker. It was claimed by the plaintiff that Kandasamy Panicker executed a usufructuary mortgage deed in favour of one Nallathambi Panicker for a mortgage debt of Rs.500/-. As per the terms of the mortgage deed, the plaintiff was allowed to redeem the property after expiry of three years. The defendants 7 to 9 in the suit were heirs of mortgagee Nallathambi Panicker. It was claimed by the plaintiff that the plaintiff and the defendants 1 to 6, who were all heirs of Kandasamy Panicker, were entitled to redeem the suit property from the heirs of Nallathambi Panicker, namely, the defendants 7 to 9, by paying mortgage debt. When the plaintiff and the defendants 1 to 6 approached defendants 7 to 9 for redemption of the property, it was represented by them that the suit property was sold to Nallathambi Panicker by Kandasamy Panicker for a sum of Rs.5000/- orally and hence claimed absolute right over the property. Under these circumstances, the plaintiff was constrained to file a suit for redemption of usufructuary mortgage.

3. The plaint, presented by the appellant, was rejected by the trial Court on the ground of limitation. The trial Court opined that the usufructuary mortgage was executed on 20.11.1942 and as per the recitals in the document, the period for redemption was three years. The trial Court held that the plaintiff should have filed the suit within 30 years from the date of expiry of three year time limit. However, the present suit filed beyond the period of 33 years was barred by limitation. Hence, the trial Court rejected the plaint on the ground of limitation. Aggrieved by the same, the plaintiff preferred an appeal in A.S. No. 165 of 2001 on the file of Sub-Court, Aruppukkottai. The first appellate Court also came to the conclusion that the plaintiff should have filed the suit within 33 years and the present suit filed beyond 33 years was barred by limitation and hence dismissed the suit. Aggrieved by the same, the plaintiff is before this Court.

4. At the time of admission, this Court formulated the following substantial question of law, by an order, dated 26.04.2004:

“Whether the Limitation Act, 1908, is applicable to the present case, or the Limitation Act 1963, is applicable to the present case?”

5. The learned counsel appearing for the appellants, at the time of argument, not pressed the question of law framed at the time of admission, but argued on a new question of law. The learned counsel submitted that in case of usufructuary mortgage deed, limitation for redemption starts only on payment of mortgage debt by the mortgagor and, in the case on hand, the mortgage debt was deposited into the Court at the time of presentation of the plaint and, therefore, the suit was very well within limitation period. In support of his contention, the learned counsel relied on a decision of the Apex Court in Singh Ram v. Sheo Ram, 2014 (9) SCC 185.

6. On the basis of the arguments made by the learned counsel for the appellants, the following substantial question of law is taken up for consideration:

“Whether the