Introduction

This case deals with the limitation period of the redemption of the original mortgage deed.

Facts

• In this case, the oral mortgage deed was executed in the year 1893 for a sum of Rs. 53.
  • And the original mortgagee sold his mortgagee rights by a registered deed to the respondents on 11.01.1960.
• The appellants had purchased the suit land in the year 1959 from the original mortgagor Rekha and others through three separate registered sale deeds.
  • Appellants contended that the mortgagors remained in possession of the suit land till 1960-61 and were getting the same cultivated through their tenants.
• The appellants also contended that since the original mortgagees had acknowledged the original mortgage in the year 1960, a fresh period of limitation for redemption of the mortgage in question begun to run from 11.01.1960.
  • Appellants further prayed for possession by way of redemption of mortgage on payment of Rs. 53.
• The appellants filed a suit for possession in 1980 by way of redemption of the suit land as against the respondents.
• The Trial Court held that the suit was within time, and they have the right to redeem the mortgage and the fresh period start from 11.01.1960.
• The first appellate court and the High Court stated that the suit is barred by time.

Issues Involved

• Whether the deed is barred under the Limitation Act, 1963?
• Whether the oral mortgage is valid from 1893?

Observations

• The Court observed that the language recorded makes it clear that the right of redemption accrues from the very first day unless specifically restricted under the mortgage deed.
  • When there is no restriction, mortgagors have a right to redeem the mortgage from the very date when the mortgage was executed.
• The Court further observed that the right accruing means, right either existing or coming into play.
• Where no period in the mortgage is specified, there exists a right for a mortgagor to redeem the mortgage by paying the amount.
  • Mortgagor can pay the amount on the very day on which mortgage was executed or any day thereafter.
• The Court said as far as the present case is concerned neither mortgagors offered to pay the mortgage amount nor mortgagees communicated that the mortgage amount has been paid.
  • Hence, the right to redeem mortgage could not be said to have accrued.
• And now the appellants filed the suit of redemption in 1973, after more than 60 years of executing oral mortgage.
• The period of limitation for filing a suit for redemption is 60 years which will be counted from the date the oral mortgage came into existence, that is from 1893, expires in 1973.
  • Hence the suit still is barred by time.

Conclusion

• The court upheld the decision of the HC and said that the period of limitation would start from the date when valid mortgage was said to have been executed.
• Oral mortgage was considered valid in this case.

Notes

The Limitation Act, 1963, Section 18 - Effect of acknowledgment in writing —

(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.

Explanation.—For the purposes of this section —

(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the property or right,

(b) the word “signed” means signed either personally or by an agent duly authorised in this behalf, and

(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.