Decided on April 23,1952



Krishnaswami Nayudu, J. - (1.) The question that arises for determination in this appeal is one of limitation. The appellant is the representative of the mortgagor and Instituted the suit out of which the appeal arises for redemption. The first Court decreed the suit. But in appeal the learned District Judge of Chingleput reversed the decision of the District Munsif and held that the suit was barred by limitation. The usufructuary mortgage deed is dated 21-8-1882 and is in Tamil. That was in renewal of an earlier usufructuary morgage deed which was for a period of three faslis ending with Ani 1885. At the end of the document it is provided that the prescribed time for the mortgage deed runs from the date of the deed till the end of fasli 1295, i.e., 15-71885. in the body of the document the mortgagor states that he will redeem the property at the time fixed under the mortgage deed. There is a further clause where he states that if he did not pay the amount according or as per the period fixed as above, the mortgagee would be entitled to sell for a value to be fixed by the mediators. There is no difficulty in holding that under this document a period has been fixed, the period being from the date of the document till 15-7-1885. The learned District Judge on a construction of the document and on a translation of his of the same held that the terms of the document were that the property has to be redeemed 'within the prescribed time' and the right of the mortgagee to sell the property would arise in default of payment 'within the prescribed time'. Relying on the decisions in -- 'Rose Ammal v. Rajarathnammal', 23 Mad 33 CA), -' Chinnasami Reddiar v. Krishna Reddi', 16 Mad LJ Me (B), -- 'Chandu Pai v. Koaja Poojari', AIR 1916 Mad 940 (1) CO and -- 'Bhagvantulayya v. Venkamdhora', AIR 1941 Mad 484 (D), he held that the time in the document is expressed to be within or in a certain number of years and that the time fixed thereby should be presumed to be a protection only for the mortgagor-debtor and that the period' of limitation has to be reckoned from the date of the document and not from 15-71885, as is contended on behalf of the plaintiff-appellant. On a careful reading of the Tamil document, I am satisfied that the learned District Judge's translation is not correct. in the deed the recital is that the mortgagor will redeem the property on paying the principal and interest. The words used are "merpadiyanil" which the learned District Judge has translated as "within the prescribed time". The words used are not merpadiyanukkul". The words "merpadiyanil" would mean "in or at the said time or prescribed time". Then again where the mortgagee is empowered to sell the property in default of payment, the words used are "Merpaditayappadi" which the learned District Judge has translated as within the prescribed time. "Merpaditayappadi" should be translated "as per or according" and not "within". The conclusions therefore of the learned Judge arrived at on the basis that the mortgagor had an option to redeem or in any event has to redeem within the prescribed time entitling him to institute a suit for redemption at any time on and from the date of the document and he need not have waited till the expiry of the period fixed in the document could not be supported.
(2.) The right of redemption is provided under Section 60, Transfer of Property Act which entitles the mortgagor to redeem the property at any time after the principal money has become due. Prior to the amendment of the Act by Act 20 of 1929 and Act 5 of 1930, the word used was "payable" instead of "due". Mitra in his Commentaries on the Transfer of Property Act points out by referring to the Special Committee's proceedings that the change was necessitated by reason of a diversity of opinion that existed on the meaning given to the word "payable" in Section 60, Transfer of Property Act as it was held in some cases that when a day was fixed for the payment of the debt secured by the mortgagee and nothing more was stated, the presumption was that the day was fixed for the convenience of the debtor and that it was open to the mortgagor, if he liked to pay the debt at an earlier date -- 'Bhagwat Das v. Parshad Singh', 10 All 602 (E) and that a contrary view is taken in other cases and the general principle that the rights of redemption and foreclosure are co-extensive was strictly followed --Vadju v. Vadju', 5 Bom 22 (F). In order to set at rest this conflict it was found necessary to substitute the word "due" for the word "payable" under the amendment of the Act.
(3.) The learned counsel for the appellant (respondent?) relied on the case cited by the lower appellate Court in -- 'AIR 1941 Mad 484 (FB) (D)', in which the question that arose for decision was whether the tender of an amount in redemption of a mortgage was proper. The stipulation in the mortgage deed was that the mortgagor shall pay all the principal and interest payable under the document by 10-9-1928. The word "by" was construed by the learned Judges as "on or before" that date and it was, therefore, held that the mortgagor was entitled to tender the amount at any time prior to the date fixed by 10-9-1928, that it would be a valid tender and it was not open to the mortgagee to refuse to accept it. That decision cannot be of much assistance to the appellant (respondent?) there being no dispute as to the words used which were "by a certain date" which were construed to be "on or before that date".;

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