Decided on December 10,1953



Rajamannar, C.J. - (1.) This second appeal arises out of a suit instituted on 24-9-1947 by the appellant for the recovery of money alleged to be due under a mortgage deed dated 13-51953 executed by one Kannamrnal, the deceased mother of the first defendant and wife of the second defendant in favour of the deceased father of the plaintiff. The only Question with which we are now concerned is whether the suit brought more than 12 years after the date of the mortgage is saved from the bar of limitation under Section 20(2) of the Limitation Act by reason of the fact that the mortgagee was put in possession of the mortgaged property. The property mortgaged is a house. There is a stipulation in the mortgage deed that the rent from the house should be adjusted towards the interest due and payable on the mortgage. Both the Courts have held that the suit is barred by limitation, because Section 20(2) would not be of any assistance to the plaintiff. That sub-section runs thus: "Where mortgaged land is in the possession of the mortgagee the receipt of the rent or produce of such land shall be deemed a payment for the purpose of Sub-section (1)." And under Sub-section (1), the effect of payment of interest as such would give rise to a fresh period of limitation from the. time of such payment. The ground on which the courts below have held that the plaintiff will not be entitled to the benefit of Section 20(2), Limitation Act, is that the property mortgaged is not land but is a house. The question is whether the expression "mortgaged land" in that provision would include a "house".
(2.) No direct authority of this court or of any other court has been brought to our notice in which this question is discussed. Learned counsel for the plaintiff appellant cited to us the decision in -- 'Manakchand Bharmappa v. Rachappa Virsangappa', (A) in which Section 20(3) was applied, and that case related to the mortgage of a shop. But it is evident from the Judgment in that case that the point which now falls for determination was not before the learned Judges. They appear to have assumed that shop would be comprised in the expression "land". This decision cannot obviously serve as a precedent.
(3.) Mr. D. A. Krishna Variar, learned counsel for the appellant, invited our attention to certain decisions of the Punjab Chief Court and the Lahore High Court, In which the learned Judges construed the term "land" occurring in Article 125, Limitation Act, as including a "house", or at any rate, the site on which a house was situated, viz., -- 'Amir Begum v. Mt. Hussain Bibi', AIR 1922 Lah 98 (B); -- 'Ralyam Ram v. Sher Singh', 5 Ind Cas 842 (1) (Punj) (C); -- 'Soman Singh v. Uttamchand', AIR 1920 Lah 42-1 (D). There is, however, one decision of the same Chief Court taking a contrary view in -- 'Devraj v. Shivram', AIR 1914 Lah 408 (E). We do not think it proper to take into consideration any of these decisions which were concerned with a construction of Article 125. It is true that the word "land" occurs in that article. It also occurs in Article 130. Other Articles however refer to "immoveable property" viz., Articles 39, 109, 111, 132, 134, etc. We do not think it safe to draw any analogy between these articles and the provision contained in Section 20(2) in the main body of the Act as regards the interpretation of the word "land" as different considerations might be applicable according to the context of the several provisions.;

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