JUDGMENT

The first plaintiff in a suit for redemption of 1/8th of 7.50 acres in Sy.No: 487/1A is the appellant herein. He lost in O.S.No.30 of 2006 and also his first appeal in A.S.No.11 of 2008.

2. The short case of the plaintiffs is that on 20.06.1947, the father of the plaintiffs had created a usufructuary mortgage vide Ext.A.3 = Ext.B-1 in favour of the father of the defendants. This document stipulated five years for redemption of the mortgage. This would imply that the terminus quo for filing the suit for redemption would commence from 20.06.1952. The period of limitation in terms of the Limitation Act, 1908 was 60 years, and that in ordinary course would expire only in 2012. However, Limitation Act, 1963, came into force to replace the earlier Act which reduced the period of limitation from 60 years to 30 years. Sec.6 of the Limitation Act, 1963, provided for a switch over period of six years from the old Act to the new Act. This would mean that the time for filing the suit for redemption would expire by 26.06.1988. The suit however, was laid in 2006. Both the courts below have dismissed the suit solely on the ground of limitation. Hence, the Second Appeal at the instance of the first plaintiff alone.

3. This Second Appeal is admitted for considering the following substantial questions of law:

i) Have not the courts below wrongly reckoned that the limitation applies to usufructuary mortgages?

ii) Have not the courts below erred in dismissing the suit on the point of limitation?

4. Heard both sides. The learned counsel for the first plaintiff/appellant submitted that even though Ext.A-3 goes by the nomenclature 'otti', it in essence is an usufructury mortgage and its redemption is governed by Sec.62 of the Transfer of Property Act. In Singh Ram (dead) through Lrs., v Sheo Ram & Others [(2014) 9 SCC 185], the Hon'ble Supreme Court has held that the time for redemption commences when the mortgagee has paid himself out of the usufructs from the mortgaged property or when the mortgagor has deposited the mortgage money. This authority was later followed by it in Ram Rattan (dead) by Lrs., v Devi Ram & Others [C.A.1541 of 2011, dated 07-10-2021]. Inasmuch as Ext.A-3 is a usufructury mortgage, limitation for instituting a suit for redemption would commence only when the mortgage-money is deposited and not from the date of the mortgage as has been held by the courts below. Reliance was also placed on the ratio in Chellayyan alias Chellappan Vs Rema Devi [2011-3-LW 67] and Gnanammal Vs Elayaperumal nadar & Others [(1976)2 MLJ 269].

5. Per contra, the learned counsel for the respondent raised two aspects in defence of the contention of the plaintiff's counsel:

● Ext.A-3 is an otti document, and by definition is an anomalous mortgage, and not a usufructuary mortgage as defined in Sec.58 (d) of the Transfer of Property Act since there is no stipulation therein to enable the mortgagee to pay himself out of the usufructs either wholly or partially towards the repayment of the mortgage debt. Only where a mortgage falls within the statutory definition of a usufructuary mortgage, Sec.62 would apply and so is the ratio in Singh Ram case. Ext.A3 = Ext.B1 is not a classical usufructuary mortgage falling within Section 58(d) of the Transfer of the Property Act, but an anomalous mortgage falling within Section 58(g) of the Transfer of the Property Act since the mortgagor has specifically bound himself to repay the mortgage debt with a further stipulation that the mortgagee should hold the property till the debt is paid. More significantly, there is no stipulation that the mortgagee shall pay himself out of the usufructs from the property. This apart, even in Singh Ram case, the Hon'ble Supreme Court has drawn a distinction between mortgages where time for redemption is not specified and those where time for redemption is specified. So far as the present case is concerned, Ext.A.3 falls under the second category since 5 years time is stipulated for