Leonard Stone, Kt. , C. J. -
(1.)THIS appeal from the judgment dated January 22, 1942, of Mr. B. C. Patil, who was then First Class Subordinate Judge at Belgaum, has come before this full bench as it raises questions of some importance with regard to the application of the Indian Limitation Act, 1908, to mortgage suits in cases in which the mortgagee was a Hindu joint family, which subsequently divided, so that the individual members of the family or the divided branches, represented by their kartas or managers, become co-owners of the mortgage. The same position may also follow, when the original mortgagee is a Mahomedan, who subsequently dies, and the mortgage devolves upon his heirs. Such difficulties are indeed inherent in any system which does not require rights in or to immovable property to vest in a legal representative, but which recognises a multiplicity of co-owners, who are often difficult to trace or who may be unwilling to co-operate.
(2.)BY a mortgage dated November 1, 1926, one Shivappa, as karta of a joint Hindu family, lent the sum of Rs. 3,000 to defendants Nos. 1 and 2 .Shivappa died, and the mortgage debt thereupon belonged to the surviving members of the joint family, who sometime thereafter separated and became divided into three branches, each of which had its karta. The plaintiff is one of the three kartas. Defendant No.1 sold three of the properties subject to the mortgage to defendant No.4 and he is the sole appellant in this Court.
It is not, nor could it be, disputed that the three kartas held the mortgage debt as co-owners by tenancy in common. The mortgage is in writing and by it the debt is to be repaid at the expiration of one year and it is provided: These lands (which are specified by reference to survey numbers) are given in simple mortgage and the same are in our (the mortgagor's) possession. You shall recover the total amount due to you (the mortgagee) from these properties.
By Sub-section 58 (b) of the Transfer of Property Act, 1882, a simple mortgage is one of the six types of mortgages there classified, and its attributes are : (1) a personal obligation on the mortgagors to pay, and (2) the transfer of the power to cause the property to be sold on default being made. Such a power is one, but only one, of the component rights that make up the aggregate of ownership, there is neither a transfer of title to the immovable property, nor of possession : but it does give the right to payment out of the property specified. In the case before us the mortgagors remained, and have at all times since been, in possession of the immovable properties. It is not suggested that any payment of interest or acknowledgment of the mortgage debt has been made, and it is Article 132 in the schedule to the Indian Limitation Act, and not Article 147, which is the relevant article applicable to a mortgage, such as the one before us. It follows that by the conjoint effect of Section 3 and Section 12 of the Act and Article 132 in the schedule thereto, the mortgagee's right to enforce payment became barred after November 1, 1939. On that very last day, the plaintiff instituted this suit, but the only defendants to it were the mortgagors or persons who claimed through them. The plaintiff neither joined the other two kartas as co-plaintiffs with himself, nor did he add them as defendants till October 27, 1941, by which time the statutory period had expired by nearly two years, so far as they were concerned.
(3.)BY the prayer to his plaint the plaintiff asked that Rs. 6,000, that is to say the whole mortgage debt of Rs. 3,000 with an additional Rs. 3,000 claimed as arrears of interest, might be recovered with costs and future interest by the sale of the mortgaged property. In the trial Court the learned Judge, for reasons to which I will refer later, made an order for payment to the plaintiff of Rs. 2,000, that is to say, one-third of the total sum claimed to be due, and the order continued: The amount due to plaintiff (as representing himself and his undivided son, defendant No.10) under the suit mortgage is Rs. 2,000 at the date of suit. If defendants Nos. 1 to 4 pay plaintiff within six months this amount and one-third of the costs of suit and interest on Rs. 1,000 at 9 per cent. per annum from date of suit, the plaintiff's mortgage in suit shall stand redeemed and satisfied. In default of payment as aforesaid, the plaintiff will be at liberty to apply for a final decree for sale.
Section 3 of the Indian Limitation Act is as follows: Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence. The explanation to the section so far as material provides: A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer. The explanation is to the same effect as Section 26 and Order IV, Rule 1, of the Code of Civil Procedure. The first schedule to the Act contains Article 132 which is in these terms : Description of suit. Period of Time from which period limitation. begins to run. To enforce payment of money charged Twelve years. When the money sued forupon immovable property. becomes due.