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Dhanammal v. Raju Gramani (Died) And Others
Factual and Procedural Background
The appeal arises from a suit for redemption instituted by the appellant, who is the representative of the mortgagor. The trial Court (District Munsif) decreed the suit, but on appeal the learned District Judge of Chingleput reversed that decision on the ground that the suit was barred by limitation. The usufructuary mortgage deed in question is dated 21-8-1882, written in Tamil, and was a renewal of an earlier usufructuary mortgage for three faslis ending with Ani 1885. The deed specifies that the prescribed time for the mortgage runs from the date of the deed until the end of fasli 1295 (15-7-1885). The deed contains a recital that the mortgagor will redeem the property at the time fixed by the mortgage and a clause permitting the mortgagee to sell the property if payment is not made "according as per the period fixed" (mediators to fix value). The District Judge construed certain Tamil words in the deed as meaning "within the prescribed time" and, relying on several authorities, concluded that the limitation period should be reckoned from the date of the document (so that the suit was barred). The present opinion examines that construction, statutory law (Section 60 Transfer of Property Act), prior decisions, and the Limitation Act to determine when the right to redeem accrues for limitation purposes.
Legal Issues Presented
- Whether the suit for redemption is barred by limitation — specifically, whether the period of limitation for a suit to redeem runs from the date of the mortgage deed (the document date) or from the end of the period fixed in the deed (15-7-1885) when the right to redeem accrues.
- Whether, under the terms of the deed and applicable law, the mortgagor was entitled to redeem the property at any time from the date of the mortgage or only at/after the fixed period specified in the deed.
- What the relevant Tamil terms in the deed (such as "merpadiyanil" and "Merpaditayappadi") mean for the mortgagor's right of redemption and for the mortgagee's power to sell.
Arguments of the Parties
Appellant's Arguments
- The plaintiff-appellant contended that the period for the mortgage should be reckoned to the end of the fixed period, i.e., 15-7-1885, and that the right to sue for redemption would therefore accrue only after that date; counting limitation from that date would make the suit timely.
- The appellant's counsel relied on a precedent (AIR 1941 Mad 484) in which wording of a deed using "by" a date was construed as "on or before" and a tender prior to the fixed date was held valid; by analogy, early tender might be effective depending on wording.
Lower Appellate Court's View (as characterized in the opinion)
- The learned District Judge construed the Tamil deed as using words equivalent to "within the prescribed time" for redemption and for the mortgagee's right to sell; on that construction, the time expressed in the deed was treated as a period running from the date of the document, and the District Judge, relying on several authorities, held that the limitation period had to be reckoned from the document date, not from the expiry date 15-7-1885, rendering the suit barred.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rose Ammal v. Rajarathnammal, 23 Mad 33 | Used to support a view that when time in a mortgage is expressed as "within" or "in a certain number of years" it may be presumed to protect the mortgagor and that limitation should be reckoned from the date of the document. | The District Judge relied upon this authority for the conclusion that the limitation period commenced from the date of the document; the present Court examined the deed's wording and disagreed with that construction in this case. |
| Chinnasami Reddiar v. Krishna Reddi, 16 Mad LJ 146 (as cited) | Cited in the context of decisions construing wording in mortgage deeds (where the word "within" was construed in particular ways). | The District Judge relied on this type of authority for his construction that favored reckoning limitation from the document date; the present Court treated such decisions as dependent on particular wordings and not decisive for the deed before it. |
| Chandu Pai v. Koaja Poojari, AIR 1916 Mad 940 | Decision on construction of particular words in a mortgage deed; in some cases the word "within" was held to mean "on or before". | Cited by earlier courts as supporting a construction allowing redemption before the fixed date in particular factual wordings; the present Court noted these were constructions of particular words and not applicable to the present deed, which does not use "within". |
| Bhagvantulayya v. Venkamdhora, AIR 1941 Mad 484 | In that case a stipulation that principal and interest were payable "by" a date was construed as "on or before" that date, and a tender before the fixed date was held valid. | The appellant relied on this decision, but the Court observed it was of limited assistance because the present deed does not contain the same wording ("by a certain date"); the Court therefore did not apply it to allow early redemption. |
| Bir Mohamed Rowther v. Nagoor Rowther, AIR 1915 Mad 425 | Bench of the Court preferred to follow the Privy Council decision in Bhaktawar Begum and held that a mortgagor cannot redeem before the expiry of the term mentioned in the deed unless there is an express contract to the contrary. | The present Court noted that the earlier 23 Mad 33 view (that "within" allowed redemption before the date) was overruled by this line of authority following the Privy Council, and relied on that principle in construing the present deed. |
| Bhaktawar Begum v. Hussaini Khanum, AIR 1914 PC 36 (Privy Council) | Held that where a mortgage fixes a term, the mortgagor cannot redeem before expiry of that term unless there is a contract to the contrary in favour of the mortgagor. | The Privy Council decision was treated as authoritative and followed by the Bench in later Madras decisions; the present Court applied the same principle to hold that, absent a contractual provision allowing early redemption, the mortgagor's right arises only after the fixed period. |
| Tirugnana Sambanda Pandara Sannadhi v. Nallatambi, 16 Mad 486 | Where payment is to be made by the mortgagee from rents and profits, the obligation to surrender and possession by the mortgagee are tied to realization; the right of redemption accrues when, per the contract, the mortgage money has become payable and is paid or tendered or is satisfied out of rents and profits. | The Court referred to this decision to illustrate that, under the contract and prior judicial exposition, the right of redemption accrues when the mortgage money becomes payable in the manner agreed; this supported the conclusion that redemption in the present case arises after the fixed period. |
| Vadju v. Vadju, 5 Bom 22 | Expresses the general principle that the rights of redemption and foreclosure are co-extensive; for example, stipulating payment in ten years precludes redemption at an earlier date absent contrary stipulation. | The Court cited the principle to explain the background of the conflict over "payable" vs "due" and to support the proposition that, in absence of contrary contractual provision, redemption cannot be exercised before the period fixed by the mortgage. |
| Bhagwat Das v. Parshad Singh, 10 All 602 | Represents the view that when a day is fixed for payment and nothing more is stated, the day may be presumed fixed for the convenience of the debtor and the mortgagor might pay earlier. | The Court cited this decision as illustrative of the pre-amendment conflict about the meaning of "payable" which led to the substitution of "due" in Section 60; it is part of the historical background rather than being determinative in this case. |
| Lasadin v. Gulab Kunwar, A.I.R. 1932 PC 207 (Privy Council) | Under the Limitation Act (Article 132), the mortgage-money "becomes payable" only when either the stipulated period has expired or the mortgagee has exercised his option to enforce the mortgage; the Privy Council observed that mortgage-money does not "become due" until both the mortgagor's right to redeem and the mortgagee's right to enforce have accrued. | The Court applied this principle to conclude that, where a period is fixed in the deed, the 60-year period for a suit under Article 148 must be counted from the date when the principal money becomes due (here 15-7-1885) and, on that basis, held the present suit to be within time. |
Court's Reasoning and Analysis
The Court proceeded by a close textual and legal analysis:
- Construction of the Tamil deed: The Court examined the Tamil words used in the deed. It found that the District Judge's translation was incorrect. The words used by the mortgagor were "merpadiyanil" (not "merpadiyanukkul") which the Court interprets to mean "in or at the said time or prescribed time" rather than "within the prescribed time." Similarly, where the mortgagee's power to sell is described the deed uses "Merpaditayappadi" which the Court reads as "as per or according" and not "within." On this textual basis the Court rejected the District Judge's construction that the deed conferred an option to redeem at any time from the date of the document.
- Statutory framework — Section 60, Transfer of Property Act: The Court analyzed Section 60, noting that the right of redemption under that provision arises "at any time after the principal money has become due." The Court explained the historical amendment substituting "due" for "payable" (Acts of 1929 and 1930), observing that the change was made to resolve conflicting authorities about whether a fixed day for payment was merely for the convenience of the debtor or whether it fixed the time when the right to redeem arose.
- Survey of authorities and their applicability: The Court reviewed earlier decisions. It observed that some earlier decisions had construed words like "within" or "by" to allow redemption before the fixed date in particular cases, but that a Bench of the Court had preferred the Privy Council's approach (Bhaktawar Begum) that a mortgagor cannot redeem before the expiry of the term unless the contract provides otherwise. The Court also noted that several decisions which construed "within" as "on or before" were decisions addressing particular wordings and therefore not universally applicable.
- Limitation analysis under the Limitation Act: Turning to limitation, the Court applied the Privy Council decision in Lasadin v. Gulab Kunwar and related reasoning. Article 148 of Schedule I (Limitation Act) provides a 60-year period for suits to redeem when the right to redeem accrues. The Court accepted that the mortgage-money "becomes due" when the stipulated period expires (or earlier if the mortgagee exercises his option), and that the 60-year period must be counted from that time. In the present case the stipulated period ended on 15-7-1885; counting limitation from that date, the suit was held to be within the 60-year period.
- Contractual freedom: The Court acknowledged that parties could, by express contractual stipulation, make the right of redemption exercisable earlier than the fixed period. Such a stipulation would create an earlier contractual right to redeem independent of Section 60's default rule. However, the Court found that no such provision existed in the present deed.
Holding and Implications
Holding: The Court held that the right to redeem under the deed in this case arises only after the period mentioned in the document (viz., 15-7-1885) and, on the basis of the Limitation Act counting period from the date when the principal money becomes due, the suit is within the prescribed period (i.e., the suit is in time).
Implications:
- Direct effect on the parties: The Court reversed the District Judge's conclusion that limitation ran from the date of the document; instead the limitation period is to be counted from 15-7-1885 (the date when the principal money became due under the deed), which results in the present suit being within time.
- Interpretative guidance: The decision emphasizes careful textual construction of the specific words used in a deed (here, the Tamil terms) rather than applying a broad presumption that a time stated in a deed automatically gives the mortgagor a right to redeem "within" that period from the date of the deed.
- Statutory and precedential alignment: The Court applied the post-amendment understanding of Section 60 (substituting "due" for "payable") and followed Privy Council authority concerning when mortgage-money is "due" for limitation purposes (Lasadin). The opinion indicates that contracting parties remain free to stipulate an earlier right to redeem, but no such stipulation existed in this deed.
- No broader precedent claimed: The opinion applies established principles and statutory interpretation to the facts; it does not purport to establish a novel general rule beyond the application of those principles to the specific deed language and limitation calculation in this case.
This summary is based exclusively on the content of the provided opinion and does not add or infer facts beyond that text.
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., 15-7-1885. 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 15-7-1885, 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".
4. The other decision in -- '23 Mad 33 (A)', where the words which came up 'for construction by Court were "within the 20th of April 1924" & the learned Judge held "within" was sufficient to hold that the mortgagor is entitled to redeem at any time before the date fixed. This decision. however, has been held to be not good law be Bench of this Court in -- 'Bir Mohamed Rowther V. Nagoor Rowther', AIR 1915 Mad 425 (1) (G). The learned Judges preferred to follow the Privy Council decision in -- 'Bhaktawar Begum v. Hussaini Khanum', AIR 1914 PC 36 (H), which I shall presently refer to. In that case the terms of the mortgage were that the mortgagee will receive the said principal sum in a term of seven years and surrender the lands. Following the decision of the Privy Council, it was held that the mortgagor cannot be allowed to redeem the mortgage before the expiry of the term mentioned in the mortgage deed, unless there is a contract to the contrary in favour of the mortgagor and that the expression of opinion of the learned Judge in --'23 Mad 33 (A)', was in their opinion, must be held to be overruled.
5. Two other decisions relied upon on behalf of the appellant, namely, -- '16 Mad LJ 146 (B)' and -- 'AIR 1916 Mad 940 CD (C)', proceeded nn the construction of the particular words in the mortgage deeds under consideration. In these decisions where the word construed being "within" it was held to mean "on or before".
6. in the present case in view of the fact that a period was fixed under the document and the redemption was to be at the said period, it will not be correct to hold that either the mortgagor was required to pay the amount within that period or the mortgagee became entitled to foreclosure, if the mortgage amount was not paid within the period. The word "within" does not anywhere appear in the mortgage deed in the present case.
8. The decision of Muttusami Aiyar and Wilkinson JJ. In -- 'Tirugnana sambanda Pandara Sannadhi v. Nallatambi', 16 Mad 486 (D, may also be referred to. It was a decision where in a suit for redemption the mortgage deed provided that the mortgagee should pay himself the debt from the rents and profits of the estate and for the surrender of possession, when the debt is so paid off. It was held that the event on which the obligation to surrender is made by the parties to depend, is the realisation of the principal money and interest by the mortgagees themselves from the rents and profits of the mortgaged property and the possession by the mortgagees until that event occurs is of the essence of the transaction. After referring to Section 60, Transfer of Property Act prior to the amendment where the right to redeem arose after the principal money had become payable the learned Judges observe as follows:
"These provisions of the law point to the conclusion that the right of redemption accrues, when, according to the contract of the parties, the mortgage money has become payable and is paid or tendered or when it is satisfied from rents and profits, when such is the mode of payment indicated by the contract. Prior to the date when. act 4 of 1882 came into force it was held in several cases in this Presidency that when a day is fixed for the payment of the debt by a contract of mortgage & nothing more appears, the presumption is that the day is fixed for the convenience of the debtor, and that the mortgagor pay the debt at an earlier date."
But the learned Judges following the decision or the Bombay High Court in '5 Bom 22 (P)' observed:
"that the general principle as to redemption and foreclosure is that in the absence of any stipulation express or implied to the contrary the right to redeem and the right to foreclose are co-extensive, and that where there is a stipulation to pay a mortgage debt in ten years the mortgagor could not redeem at an earlier date.' The principle that right to redeem & the right to foreclose are co-extensive has now been incorporated after the amendment in Section 60, Transfer of Property Act by the substitution of the word "due" for the word "payable" since doubts had arisen, as. I have stated in referring to Mitra's commentaries on the Transfer of Property Act. But after the amendment, since the right to redeem arises only after the mortgage money has become due, there is no doubt that the said principle has received recognition in Section 60, Transfer of Property Act. The question, therefore, as to whether the clause as to the payment within or at a certain time mentioned in the deed was for the benefit of the mortgagor would not arise, in view of the present language of Section 60, Transfer of Property Act. Unless and until the mortgage-money becomes due, there is no right of redemption vested in the mortgagor. The mortgagee cannot sue for foreclosure and the mortgagor whose rights for redemption accrue under Section 60, Transfer of Property Act is equally prohibited from suing for redemption until after the mortgage-money becomes due which is after the period mentioned in the document.
As to what is meant by the word "due" a reference to Article 132, Limitation Act and the decisions under that Article could place it beyond and controversy. The article of the limitation act which applies to a suit for redemption is Article 148 where a period of 60 years is provided for a suit against the mortgagee to redeem or to recover possession of immovable property mortgaged when the right to redeem or to recover possession accrues. The right to redeem is provided under Section 60, Transfer of Property Act which right accrues to the mortgagor after the principal money has become due. In Article 132, which provides for limitation for a suit to enforce payment of money charged upon immoveable property for a period of 12 years, the time from which the period begins to run is when the money sued for becomes due. It was held in -- 'Lasadin v. Gulab Kwnwar', A. I. R. 1932 PC 207 (J) that under the Indian Limitation Act, 1908, Schedule I, Article 132 a suit to enforce a mortgage for a stipulated period can be instituted within twelve years of the expiry of the period, although a default by the mortgagor has occurred during the period and by the terms of the mortgage the mortgagee thereupon had an Immediate right to enforce the mortgage, it was held that "The money becomes payable" within the meaning of the above article only when either the stipulated period has expired, or a default having occurred the mortgagee has exercised his option to enforce the mortgage. Their Lordships of the Privy Council observed that in their, opinion the mortgage-money does not "become due" within the meaning of Article 132, Limitation Act until both the mortgagor's right to redeem and the mortgagee's right to enforce his security have accrued. In view of the right of the plaintiff arising under Section 60, Transfer of Property Act to sue for redemption only at any time after the principal money has become due and if a period is fixed in the document as in the present, case, this 60 years is to be counted from the date when the principal money becomes due which will be in this case 15-7-1685. In that view the suit is in time.
9. The question would still arise even after the amendment of Section 60, Transfer of Property Act where the word "due" has been substituted for "payable" whether it would be open to the parties to a mortgage to stipulate that in so far as the right of the mortgagee to foreclose would depend upon the period mentioned in the document, the right of the mortgagor to redeem could not, by an express stipulation, be at any time from the date of the mortgage even without waiting for the expiry of the period mentioned in the document. The decision of the Privy Council in -- 'A.I.R. 1914 PC 36 (H)' lends support to this view. It will be open to have such a stipulation and I do not see any objection to the parties agreeing to introduce in the mortgage a stipulation of that nature. The provisions of Section 60, Transfer of Property Act would not prevent the parties from entering into a contract that notwithstanding the period mentioned in the document when the principal money becomes due which would be only period counted for the purpose of entitling the mortgagee to sue for foreclosure, it will still be open to the mortgagee to have the right of redemption advanced. The right to redeem in such cases would arise as a result of the contract and not by virtue of the right under Section 60, Transfer of Property Act. That question does not, however, arise in this case, since in my view of the construction of the document, there is no question that in this document there is no provision entitling the mortgagor to exercise his right of redemption at any time prior to the period fixed viz., 15-7-1885. Both under the terms of the contract and under Section 60, Transfer of Property Act, there cannot be any doubt in the present case that the right to redeem only arises after the period mentioned in the document.
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