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Sayamali Molla v. Anisuddin Molla
Structured Summary of the Provided Opinion
Factual and Procedural Background
The dispute arises from successive mortgages of the same land. In 1904 Bainuddin mortgaged a plot to defendant 1. In 1908 he again mortgaged that plot together with another plot (plot 2 in the plaint schedule) to the plaintiff. Defendant 1 sued on his mortgage in 1911 without impleading the plaintiff and obtained a decree for sale against the mortgagor alone on 30 November 1911. The plaintiff sued to enforce his mortgage in 1915, making the prior mortgagee (defendant) a defendant; the defendant set up his prior mortgage and the plaintiff's suit was dismissed as against him because the plaintiff did not seek a decree against the defendant. The plaintiff obtained a decree for sale against the other defendants on 8 May 1915. The defendant executed his decree, purchased the property in execution on 15 August 1916 and obtained possession.
The plaintiff later executed his decree and purchased both mortgaged properties on 19 November 1920 but took possession only of plot 2. On 17 July 1925 the plaintiff brought the present suit seeking redemption of plot 1 on payment of the mortgage money due to the defendant and for possession. Various defences were raised by written statement; defendant 3 did not appear. All three Courts below held the suit barred by limitation under Article 132 of the Limitation Act. The case was referred to the Full Bench on the question of limitation.
Legal Issues Presented
- Whether Article 132 of the Limitation Act applies to this suit.
- Whether the decision in Nidhiram v. Sarbeswar [1910] 14 C.W.N. 439 was correctly decided (and to what extent it governs the present case).
- Whether the plaintiff's suit for redemption is barred by limitation.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nidhiram v. Sarbeswar [1910] 14 C.W.N. 439 | Cited by lower Courts as authority for applying Article 132 to the present case; discussed the limitation period to enforce a puisne mortgage and the effect of purchase at sale. | The Court analyzed the facts of Nidhiram and held it was correctly decided on its facts but should not be read as laying down that suits for redemption fall under Article 132. The present Court distinguished Nidhiram and explained that the learned Judges there meant that the plaintiff had no subsisting right to redeem because his right to enforce the puisne mortgage was barred. |
| Nilakant v. Suresh [1885] 12 Cal. 415 | The principle that a person joined as a defendant for enforcement of mortgage should be dismissed once he sets up a prior title. | Used to support the proposition that a puisne mortgagee joined as a defendant in a prior mortgagee's suit should be dismissed when he sets up a prior mortgage; dismissal does not extinguish the puisne mortgagee's right to redeem unless otherwise extinguished. |
| Ram Narain v. Bandi [1904] 31 Cal. 737 | When a puisne mortgagee is not made a party to a prior mortgagee's suit, his rights are not affected by the decree or sale thereunder; he retains the right to redeem the prior mortgage. | Relied on to assert that the plaintiff's right to redeem remained intact despite the prior decree and sale in the first mortgagee's suit. |
| Debendra v. Ram Taran [1903] 30 Cal. 599 | That a puisne mortgagee may bring a suit on his mortgage notwithstanding a prior decree in a suit by the first mortgagee. | Cited to show that a puisne mortgagee retains the ability to pursue his own remedy even after a prior mortgagee's proceedings. |
| Gopee Bandhu v. Kaleepudo Banerjee (23 W.R. 338) | Addressed rights of rival purchasers where the first mortgagee sues without impleading the puisne mortgagee and purchases at sale; purchaser under first decree gets only the mortgagor's outstanding interest. | Applied to show that the first purchaser acquires only the mortgagor's interest and cannot defeat the puisne mortgagee's right to redeem or enforce his mortgage. |
| Fisher on Mortgages (paras. 1448, 1693) — treatise | Describes English law: when a puisne mortgagee seeks redemption, reasons why certain parties must be joined or need not be joined; the rule that subsequent mortgagees may be foreclosed without joining prior ones in certain circumstances. | Used to explain the English reasoning behind joinder and foreclosure rules and to support the view that where a puisne mortgagee has already obtained a decree on his mortgage he may redeem a prior mortgage in a subsequent suit. |
| Umesh Chander v. Zahur Fatima [1891] 18 Cal. 164 | Authority concerning rights of parties subsisting under their respective mortgages. | Recommended for reference by the trial Court when deciding remaining issues about rights of the parties under their mortgages. |
| Sukhi v. Safdar Ghulam A.I.R. 1922 P.C. 11 | Authority on rights of parties subsisting under their respective mortgages (as cited). | Suggested for the trial Court's consideration in determining the parties' subsisting rights and priorities. |
| Jnanendra v. Shorashi Charan A.I.R. 1922 Cal. 23 | Another authority regarding rights subsisting under respective mortgages. | Placed before the trial Court as relevant precedent when adjudicating the unresolved issues about priorities and redemption rights. |
| Dirgopal v. Bolaki [1880] 5 Cal. 269 | Referable on the question of rights and priorities between competing mortgagees/purchasers under decrees. | Suggested as relevant to determine preferential right to the equity of redemption between the parties when remitting the case for trial. |
Court's Reasoning and Analysis
The Court proceeded in a sequence of legal observations and applications strictly tied to the facts and authorities cited:
- Preliminary: The Court observed the procedural position under Order 34, Rule 1, Civil P.C., that a puisne mortgagee may sue for sale without making a prior mortgagee a party. If the prior mortgagee is joined and sets up his prior title he should be dismissed — Nilakant v. Suresh was cited for that proposition. The Court emphasized that dismissal of the plaintiff's suit as against the defendant (because no decree was sought against the defendant) did not extinguish the plaintiff's right of redemption unless extinguished otherwise.
- Puisne mortgagee rights: The Court reiterated that where a puisne mortgagee is not made a party to the first mortgagee's suit his rights remain unaffected by the decree or sale; he retains the right to redeem the prior mortgage — supported by Ram Narain v. Bandi and Debendra v. Ram Taran. The purchaser under the earlier decree acquires only the mortgagor's outstanding interest and does not defeat the puisne mortgagee's rights (Gopee Bandhu).
- Core limitation analysis: The Court considered which Article of the Limitation Act governs a suit for redemption. The lower Courts applied Article 132 ("suit to enforce payment of money charged upon immovable property"). The Court held that a suit for redemption cannot, by proper construction, be treated as a suit "to enforce payment of money"; rather the special article applicable is Article 148 (which gives 60 years from when the right to redeem accrues). On the facts, the suit was brought within 60 years of the mortgage date and thus would be within time if Article 148 applies.
- Re-examination of Nidhiram: The Court analyzed the facts of Nidhiram and concluded that the learned Judges there did not lay down any general rule that suits for redemption fall under Article 132. Instead, Nidhiram held that limitation to enforce the puisne mortgage runs from the due date and that where the right to enforce the puisne mortgage was itself barred the transferee/purchaser had no right to redeem. The present Court therefore distinguished Nidhiram on its facts and rejected a broad reading that would place redemption suits within Article 132.
- Conclusion on limitation: From the foregoing, the Court concluded that Article 148 alone governs suits for redemption brought by a person entitled to redeem, and therefore the plaintiff's suit is not barred by limitation on the facts before the Court.
- Remittal and remaining issues: Because the suit below was dismissed on the ground of limitation, the Courts below did not decide other issues (notably issues 4 and 5). No witnesses had been examined at trial. The Court therefore remitted the case to the trial Court to decide those outstanding issues, including the question whether the defendant has a right to redeem the plaintiff (which depends on the preferential right to the equity of redemption arising from the respective sales).
- Practical consequences to be determined at trial: If the defendant is found entitled to redeem, he would be required to pay a proportionate part of the mortgage money chargeable on plot 1 because the plaintiff has purchased plot 2 in execution of his decree; evidence as to the respective values of the two plots would be necessary.
- Costs: The Court ordered that the appellant receive costs of the second appeal to this Court, the Letters Patent Appeal, and the Reference.
Holding and Implications
Core Holding: The plaintiff's suit for redemption is not barred by limitation; Article 148 of the Limitation Act applies (and Article 132 does not govern such a suit).
Implications and direct consequences:
- The Full Bench answered the referred questions: (1) Article 148 is applicable (Answer: No, Article 132 does not apply); (2) Nidhiram was rightly decided on its facts but must not be read as holding that redemption suits fall under Article 132; (3) the suit is not barred by limitation.
- The matter is remitted to the trial Court to decide the undecided issues (issues 4 and 5) because the lower Courts dismissed the suit only on limitation grounds and no witnesses were examined. The trial Court must determine the rights of the parties under their respective mortgages and the preferential right to the equity of redemption arising from the sales under the different decrees.
- If the defendant is held entitled to redeem, he may do so upon payment of a proportionate part of the mortgage money attributable to plot 1; the trial Court should take evidence on the relative values of the two plots before making a final determination.
- Costs were awarded in favour of the appellant for the second appeal, the Letters Patent Appeal, and the Reference.
- The opinion distinguishes earlier authority rather than creating a broad new rule; it does not purport to establish a novel limitation principle beyond applying Article 148 to suits for redemption on the facts presented. In that sense, no new expansive precedent displacing the Limitation Act's text was proclaimed.
This summary is strictly confined to the information and reasoning contained in the provided opinion. No facts or conclusions beyond the text have been added.
1. The facts of the ease giving rise to this reference are these: One Bainuddin mortgaged a plot of land to defendant 1 in 1904. In 1908 he again mortgaged this piece of land with another plot (No. 2 in the schedule of the plaint) to the plaintiff. Defendant 1 (who will be referred to as the defendant) brought his suit on his mortgage in 1911 without impleading the plaintiff and obtained a decree for sale against the mortgagor alone on 30th November 1911. Plaintiff brought a suit to enforce his mortgage in 1915. He made the present defendant a defendant in the suit along with the mortgagor and a transferee from him. The defendant set up his prior mortgage and plaintiff's suit as against him was dismissed as the plaintiff did not ask for any decree against him. Plaintiff obtained the usual decree for sale as against the other defendants in that suit on 8th May 1915. Defendant in this case put the property mortgaged to him to sale in execution of his mortgage decree and purchased it himself on 15th August 1916, and obtained possession.
2. Plaintiff afterwards executed his decree and purchased both the mortgaged properties on 19th November 1920 but obtained possession only of plot 2. Plaintiff brought the suit out of which the appeal to this Court arose on 17th July 1925 for redemption of plot 1 of the plaint on payment of the mortgage money due on the mortgage of defendant and for possession. Defendant 2 is a brother of defendant 1 and defendant 3 is said to be a tenant under the other defendants. These two may be left out of consideration.
3. Various points were raised in defence by the written statement of the first two defendants. Defendant 3 did not appear. All the Courts have thrown out the suit on the ground that it is barred by limitation, and this question has caused the reference to the Full Bench.
4. All the three Courts concurred in holding that the suit was barred under Article 132, Lim. Act, purporting to follow a decision of this Court in Nidhiram v. Sarbeswar [1910] 14 C.W.N. 439. The questions referred to the Pull Bench are:
(1) Whether Article 132 applies to this case ; (2) Whether Nidhiram's case was rightly decided ; (3) Whether the suit is barred by limitation.
5. I think it necessary to make some preliminary observations as to the rights of the parties under the circumstances stated above, It seems to have been suggested that plaintiff's right has been affected in some manner as he did not redeem the defendant when he brought this suit. Under Order 34, Rule 1, Civil P.C. a puisne mortgagee may sue for sale without making a prior mortgagee a party to the suit. No doubt if he seeks to redeem a prior mortgagee in his suit for sale he may make the prior mortgagee a party and a complete decree may then be made as in Form No. 8, Appendix D, Civil P.C. But if a person is joined as a defendant for enforcement of the right on a mortgage he should be dismissed from the action as soon as he sets up a prior title : see Nilakant v. Suresh [1885] 12 Cal. 415. The fact that plaintiff's suit on his mortgage was dismissed as against defendant does not affect his right of redemption if it is not extinguished in any other manner.
6. When a puisne mortgagee is not made a party to a suit by the first mortgagee his rights are not affected by the decree or sale thereunder, and the puisne mortgagee has still the right to redeem the prior mortgage : Ram Narain v. Bandi [1904] 31 Cal. 737. He may notwithstanding the prior decree bring a suit on his mortgage: Debendra v. Ram Taran [1903] 30 Cal. 599. The rights of rival purchasers when the first mortgagee brings his suit without impleading the puisne mortgagee, obtains a decree against the mortgagor only and purchases the property himself and the mortgaged property is sold a second time at the instance of the puisne mortgagee and purchased by himself were considered in the case of Gopee Bandhu v. Kaleepudo Banerjee 23 W.R. 338. The purchaser under the first decree purchases the outstanding interest of the mortgagor only and the puisne mortgagee's rights are not affected in any way. It should be noted that in the present case the puisne mortgagee seeks to redeem as the purchaser of the equity of redemption and the suit of the plaintiff as against the mortgagor was properly constituted, for when he brought his suit the equity of redemption of the mortgagor had not passed away from him. There can be no question that the plaintiff would have the right to redeem if his suit is not barred by limitation.
7. Now I shall consider the question as to which article of the limitation act is applicable to this suit for redemption. Plaintiff's suit has been dismissed on the ground that Article 132 of the Act is applicable to this case. That article refers to a suit ' to enforce payment of money charged upon immovable property. ' In my judgment by no straining of language can a suit for redemption fall under that article, as it is not a suit to enforce payment of money. The special article applicable to a suit for redemption is Article 148, which gives 60 years as the period from the date when the right to redeem accrues, In this case the due date under the first mortgagee's bond is not in evidence but the suit was brought within 60 years of the date of the mortgage. So if this article is applicable there is no question that the suit is within time and is not barred by limitation.
8. But it is said that the case of Nidhiram v. Sarbeswar [1910] 14 C.W.N. 439 is authority for the proposition that Article 132 applies to this case. It seems to me that if the facts of that case are properly analyzed it would appear that the learnel Judges did not profess to lay down any such rule. There the suit on the first mortgage was brought on 28th March 1892 and the sale at which the mortgages purchased was hold on 21st March 1893. The puisne mortgagee was not made a party to the suit. The first mortgagee sold his interest to another person on 14th July 1893. The puisne mortgagee then brought his suit on 6th November 1891, that is to say, after the proceedings in the suit on the prior mertgage had been brought to an end, and himself purchased the property at the sale on 20th July 1895, without making the previous purchasers a party to the suit. In the result the owner of the equity of redemption not being impleadei the only right that was transferred by the decree of the puisne mortgagee and the sale thereunder was the right under the plaintiff's own mortgage. The second mortgages could no doubt bring a fresh suit against the owners of the equity of redemption to enforce his mortgage within the period of limitation, which suit would be governed by Article 132, Limitation Act. But he did not do so. He brought a suit after his right to enforce his mortgage was barred, for a declaration of his right to redeem the prior mortgage. The question which the learned Judges were asked to consider was, whether the time within which the second mortgagee who has purchased the property in execution of a decree in a suit subsequently brought by him, to enforce his mortgage, or as in this case, his transferee, has to bring a suit, commences to run from the due data of the mortgage debt or from the date of his purchase.
9.They held, and in my opinion rightly that limitation to enforce his mortgage would run from the due date on the mortgage. The learnediJudge3 proceed to say:
The second mortgagee, by his purchase at the sale in satisfaction of his mortgage debt cannot acquire any right of redemption which, ho had not as mortgagee.
10. I think what they meant was, as the right to enforce the puisne mortgage was barred by limitation, the transferee from the mortgagee had no right in the property to enable him to redeem the prior mortgage. The same observation was made by the learned Chief Justice in his order of reference, with which I fully agree. It is unfortunate that the language used by the learned Judges in Nidhiram's case [1910] 14 C.W.N. 439 lends itself to misconstruction if dissociated from the facts of the ease. But I think they never meant to lay down a rule of limitation for an action to redeem which is not warranted by the provisions of the Limitation Act. It seems to me what they intended to say was that the plaintiff had no subsisting right to redeem.
11. I do not consider it necessary to elaborate the discussion but it seems to mo whenever a suit for redemption is brought by a person entitled to redeem against a mortgagee Article 148, Lim. Act, and no other article applies to it.
12. I have now only to refer to Fisher on Mortgages ( para. 1448 ) cited by the learned Judge who first tried the case in second appeal. The learned Chief Justice has pointed out the reason why in England the mortgagor is a necessary party to a suit by a puisne mortgagee to redeem the prior mortgagee. The 'cases cited in Fisher show that the reason of the rule that if a puisne mortgagee seeks to redeem he must foreclose all subordinate rights including the ultimate equity of redemption, is that the right to redeem of those persons would otherwise remain open, thus exposing the prior mortgageo to another suit. Where, as in this case, the puisne mortgagee has already obtained a decree on his mortgage, he is entitled to redeem a prior mortgage in a subsequent suit. The law in England is thus stated in Fisher on Mortgages para. 1693.
The second or other puisne mortgagee may foreclose those subsequent without joining those prior to themselves, for the latter can suffer no damage. The subsequent mortgagees, it is true, are left without the opportunity of redeeming all prior to them in the same suit.
13. The answers I propose to the questions put to us are:
(1) No. Article 148 is applicable.
(2) Nidhiram's case [1910] 14 C.W.N. 439 was rightly decided on its facts. If, however, it is supposed that it was decided in that case that a suit for redemption such as this is governed by Article 132, then it was wrongly decided.
(3) The suit is not barred by limitaion
14. The case has been referred to this Bench for final decision. But the suit having been dismissed on the ground of limitation the other issues raised in the case have not been decided by the Courts below, and no other question was argued before us. None of the parties, however examined any witness at the trial. The questions therefore which now require decision are covered by issues 4 and 5 and the case should be remitted to the trial Court for decision of those issues Reference may be made to the cases of Umesh Chander v. Zahur Fatima [1891] 18 Cal. 164, Sukhi v. Safdar Ghulam A.I.R. 1922 P.C. 11, Jnanendra v. Shorashi Charan A.I.R. 1922 Cal. 23, regarding the rights of the parties subsisting under their respective mortgages.
15. The defendant has claimed to redeem the plaintiff in his turn and his right to redeem the plaintiff would depend on the question as to the preferential right to the equity of redemption under the respective sales held under the decrees obtained by the parties on their mortgages. In deciding that question reference may be made to the following cases : Gopee Bandhu v. Kaleepada 23 W.R. 338 Dirgopal v. Bolaki [1880] 5 Cal. 269, Ram Narain v. Bandi [1904] 31 Cal. 737. If the defendant is held entitled to redeem he would be able to do so on payment of a proportionate part of the mortgage money chargeable on plot 1, as the plaintiff has himself purchased a portion of the property under his mortgage viz , plot 2. It would then be necessary to take evidence as to the respective value of the two plots. The case should be finally determined by the trial Court after taking into consideration all the circumstances.
16. The appellant must get his costs of the second appeal to this Court, of the Letters Patent Appeal and of this Reference.
Rankin, C.J.
17. I agree with the judgment of B.B. Ghose, J. and have only to make clear that the observations made by me in the order of reference are to be taken to be superseded by this judgment.
C.C. Ghose, J.
18. I agree with the judgment delivered by B.B. Ghose, J.
Buckland, J.
19. I also agree.
Mukerji, J.
20. I also agree.
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