The question of limitation relates to the construction of a clause in Ex. A., the deed of usufructuary mortgage. That clause is in these words: “ Till the above stated Vaida (time), you shall take possession, make improvements and enjoy and also pay the thirva due, in respect of this property; warg No. 81.” It is argued that we must hold that the passage contains a covenant to pay and that therefore the mortgagee was entitled to rely on that covenant and that this suit is in time, as it was filed within 12 years of the breach of the covenant. But we must say that it is difficult to find any covenant to pay in this clause. What the mortgagor says is that the mortgagee is to be in possession and enjoyment of the land for 15 years, and after the expiry of the 15 years, if he wishes to get back his land, he will pay the amount due to the mortgagee. There is no unqualified promise to pay. It is an option given to the mortgagor, in case he wanted to do so, to repay the mortgage amount and get back his properties. We have been referred to a number of cases in which a similar question arose, as to whether certain words, in particular deeds of mortgage, contained a covenant to pay. But we do not think that much assistance can be derived from those decisions in construing the particular document before us. We might, however, mention that the case of Kunnath Madampil Kunjunni v. Mooppil Naiyar Avergal bears a close resemblance to the facts of this case, and there the learned Judges held that there was no covenant to pay. If there was no covenant to pay, on the part of the mortgagor, then according to the Full Bench decision in Maruturu Subbamma…(Defendant) v. Gadde Narayya…(Plaintiff) *, the right of the mortgagee to sue under Sect. 68 (c) of the Transfer of Property Act arose, when the mortgagor failed to deliver possession of property to the plaintiff. Reckoning time from that date, the suit is clearly barred under Art. 132 of the Limitation Act, which undoubtedly applies. We are therefore of opinion that the learned Judge's decision on the question of limitation, so far as the suit relates to Ex. A, is wrong.
As regards Ex. B, the case really cannot be distinguished, from that in Ex. A; for, all that it says is that if the mortgagor fails to pay even in December 1899, he will pay the principal and interest in arrears, with the kanom amount due, under the undermentioned Ildarwar document, meaning Ex. A. That does not necessarily refer to the period after the expiry of 15 years. The claim under Ex. B. also must be held to be barred.
The language of. Ex. C, the other further document is however different. It says: “ If I failed to pay even then, I shall pay the amount of this document along with the amount of the Kanom, under the above mentioned usufructuary mortgage, after the vaida (time) of the said usufructuary mortgage document.” Here, there is an express covenant, on the part of the mortgagor, to pay the amount covered by Ex. C, after the term of 15 years mentioned in Ex. A; and reckoning time from that date, the suit, so far as it is based on Ex. C, is not barred. The plaintiff therefore will have a decree for the mortgage amount of Ex. C. Rs. 290 at 12½ per cent from the date of the document, until six months from this date, and thereafter at 6 per cent until realization. Time for redemption six months. The plaintiff's suit is otherwise dismissed. Costs in proportion here and in the Courts below.
.
S.SAppeal allowed in part.