In this second appeal challenging a decree for redemption of a possessory mortgage, the court examined whether the suit was barred by limitation under the 1963 Act despite an earlier acknowledgment under the 1908 Act, and whether a prior partition suit barred the current remedy.
The second appeal is dismissed as it is devoid of merits.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY ,THE 23RD DAY OF OCTOBER 2018 / 1ST KARTHIKA, 1940
SA.No.777 of 1998
AGAINST THE JUDGMENT AND DECREE DATED 09-07-1998 IN AS 267/1994 OF SUB COURT, NEYYATTINKARA
AGAINST THE JUDGMENT AND DECREE DATED 30-09-1991 IN OS 97/1974 OF II ADDL.MUNSIFF COURT, NEYYATTINKARA
APPELLANT/APPELLANT IN AS.267/1994 & 6TH RESPONDENT IN AS.272/1994/1ST DEFENDANT:
1 JACOB BALRAJ (DIED)
VADAKKE ALAMPARA,PUTHEN BUNGALOW,
PARASUVAKKAL DESOM, PARASUVAKKAL VILLAGE, NEYYATTINKARA TALUK,
(LEGAL HEIRS IMPLEADED AS ADDL.APPELLANTS 2 TO 5)
ADDL.A2 VASUMATHY,
AGED 75 YEARS
RESIDING AT VADAKKE ALAMPARA, PUTHEN BUNGALOW, PARASUVAKKAL, NEYYATTINKARA TALUK.
ADDL.A3 GEETHA RAJEEV,
AGED 55 YEARS D/O.JACOB BALRAJ, -DO - DO -DO -DO.
ADDL.A4 SATHEESH BALRAJ,
AGED 48 YEARS S/O.JACOB BALRAJ -DO- DO - DO- DO-.
ADDL.A5 ANITHA VASUMATHY,
AGED 45 YEARS D/O. JACOB BALRAJ -DO-DO-DO-DO.
(LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPELADED AS ADDL.APPELLANTS 2 TO 5 AS PER ORDER DATED 04.12.2012 IN IA.NO.2987/2012.)
BY ADV. SRI.L.MOHANAN
SA.No.777 of 1998
2
RESPONDENTS/RESPONDENTS IN AS.267/1994 & APPELLANTS AND RESPONDENTS 1 TO 5 AND 7 TO 23 IN AS.272/1994-DEFENDANTS):
1 LEVY PETER MANAMKOTTU MELE PUTHEN VEEDU, PARASUVAKKAL DESOM, PARASSALA VILLAGE. (DIED ) (LEGAL HEIRS IMPLEADED)
2 ELISY MARY, (DIED) MALAMCHUTTU PUTHEN VEEDU, DO DESOM, DO VILLAGE. (LEGAL HEIRS RECORDED)
RESPONDENTS 3 TO 5 ARE RECORDED AS LEGAL HEIRS OF DECEASED 2ND RESPONDENT AS PER ORDER DATED 12.9.2018 VIDE MEMO DATED 02.8.2018 WITH CF NO.5315/2018.
6 GOURI VASUMATHY, ALAMPARA PUTHEN VEEDU, DO DESOM, DO VILLAGE.
7 NALLATHAMPI SAMUEL, (DELETED) MALAMCHUTTU PUTHEN VEEDU, DO DESOM, DO VILLAGE. (RECORDED)
8 GOURI SAROJINI, PULIKUZHI ROADARIKATHU BUNGALOW, MACHICODE DESOM, CHENKAL VILLAGE (DIED) (LEGAL HEIRS RECORDED)
RESPONDENTS 6 AND 9 TO 14 ARE RECORDED AS LEGAL HEIRS OF DECEASED R8 AS PER ORDER DATED 25.2.2011 VIDE MEMO DATED 12.3.2009 WITH CF NO.1597/2009. 9 SAROJINI VASANTHA OF DO -.
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| 10 | SAROJINI LEELA, OF DO -. |
|---|---|
| 11 | DIVAKARAN RAJENDRAN, OF DO -. |
| 12 | SAROJINI USHAKUMARI, OF DO -. |
| 13 | SAROJINI PRASANNAKUMARI, OF DO -.(DIED ) (LRS IMPLEADED) |
| 14 | SAROJINI SASIKALA, OF DO -. |
| 15 | ABRAHAM RAJAYYAN, MANAMKOTTU MADATHUVILA VEEDU, PARASUVAKKAL DESOM, PARASSALA VILLAGE (DIED). (LEGAL HEIRS IMPLEADED) |
| 16 | SWARNAMMA, W/O. MASILLAMONI, M.S.BHAVAN, DO DESOM, DO VILLAGE, (DIED), (LEGAL HEIRS RECORDED AS ADDL.R17,R18 AND R20) |
| 17 | MASILLAMONY STANLEY, OF DO -. |
| 18 | MASILLAMONY WILBERT JOHN, OF DO -. |
| 19 | MASILLAMONY CHRISTOPHER JOHN, (DELETED) OF DO -. (RECORDED). |
| IT IS RECORDED THAT RESPONDENTS 7 AND 19 ARE DEAD AND THEIR NAMES ARE DELETED FROM THE APPEAL MEMORANDUM OF SECOND APPEAL AS PER ORDER DATED 24.3.2000 VIDE MEMO CF.579/2000. |
|
| 20 | MASILLAMONY GILBERT JOHN, OF DO -. |
| 21 | LEYAL JOICE, (DEID) MALANCHERIVU PUTHEN VEEDU, DO DESOM |
| (LEGAL HEIRS RECORDED AS R22) |
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| 22 | AMOSE JUSTIN SANANDARAJ, | |
|---|---|---|
| OF DO DO-. | ||
| 23 | MATHYAS EBANEZER, HOUSE NO.P.P.V/278/PARASSALA DESOM, PARASSALA VILLAGE. |
|
| 24 | THERESAMMA SILVY, MALAMCHUTTU PUTHEN VEEDU, PARASUVAKKAL DESOM, PARASSALA VILLAGE. |
|
| 25 | YESUNESAN BIJU, OF DO -. | |
| 26 | YESUNESAN SHIBU, OF DO -. | |
| 27 | YESUNESAN SHABU, OF DO -. | |
| 28 | YESUNESAN SHINA, OF DO -. | |
| 29 | B.V.GEETHA RAJEEV, VADAKKETHALAMPARA PUTHEN BUNGALOW, PARASUVAKKAL DESOM, PARASSALA. |
|
| 30 | NALLAMUTHU SREENIVASAN, VIJAYA SADANAM,PARASSALA DESOM, PARASSALA VILLEINAGE, (DIED), (LEGAL HEIR RECORDED AS R29 ). |
|
| AS PER THE ORDER DATED 13.9.2017 ON MEMO CF. 1018/2017 DATED 17.2.2017, RESPONDENTS 17, 18 AND 20 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED 16TH RESPONDENT, RESPONDENT NO.22 IS RECORDED AS THE LEGAL HEIR OF 21ST DECEASED RESPONDENT AND RESPONDENT NO.29 IS RECORDED AS THE LEGAL HEIR OF THE DECEASED 30TH RESPONDENT. |
||
| ADDL. | 31 | S.DILEEP, S/O.SREEDHARAN, AGED 22, RESIDING AT PUTHUVAL PUTHEN VEEDU, MANCHAVILAKOM P.O, MEKKOTTLE DESOM, KOTTAYIL VILLAGE. |
| ADDL. | 32 | S.DEEPA, |
| D/O.PRASANNAKUMARI, | ||
| AGED 20, R/AT -DO - DO-. |
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5
ADDL. 33 S.DEEPU, S/O.SREEDHARAN ,AGED 18, R/AT DO DO-.
RESPONDENTS 31 TO 33 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 13TH RESPONDENT AS PER ORDER DATED 24.2.2006 IN CMP.1318/2008.
ADDL. 34 T.RAJAMMA, W/O. LATE LEVY PETER, AGED 80, MANJAMKODE, MELEVEEDU, PARASSUVAIKKAL P.O, NEYYATTINKARA. ADDL. 35 JASMIN, D/O.LATE LEVY PETER, AGED 40, PUTHUVAL PUTHEN VEEDU, CHAVADIMUKKU , SREEKARIYAM, TRIVANDRUM. ADDL. 36 JAIN, S/O.LATE LEVY PETER, AGED 37, MANJAMKODE MELEVEEDU, PARASSUVAIKKAL P.O, NEYYATTINKARA, ADDL.RESPONDENTS 34 TO 36 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT AS PER ORDER DATED 28.1.2008 IN IA.NO,417/2006. ADDL. 37 J.M.MABEL BHAI, W/O. 15TH RESPONDENT, AGED 73 YEARS, MANAMKODU MADATHUVILA HOUSE, PARASSUVAIKKAL P.O. ADDL. 38 R.M.ARNOLD, AGED 50, S/O. DO-- MANNAMKODE , MADATHUVILA, PARASSUVAIKKAL P.O. ADDL. 39 HELAN RAJU, AGED 45 YEARS., D/O. - DO, DO - DO(GOVT.HSS,BALARAMAPURAM.) ADDL. 40 R.M. REGINALD, S/O. - DO- AGED 43 YEARS, DO -- DO ( LMS ,UPS ,PARASSUVAIKKAL).
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ADDL. 41 R.M. ANIL KUMAR, S/O. DO- RESIDING T - DO - (VRINDAVANAM HIGH SCHOOL). ADDL.37 TO ADDL.41 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED RESPONDENT NO.15 AS PER ORDER DATED 16.6.2010 IN IA.NO.82/2008.
BY ADVS. R3 TO R5 BY SRI.P.G.PARAMESWARA PANICKER (SR.) R16 TO R18, R20, R22, R37 TO R41 BY SRI.P.R.VENKETESH R3 TO R5, R34 & R35 BY SRI.P.GOPAL
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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[CR]
J U D G M E N T
This second appeal arises from a suit for
redemption of a possessory mortgage and for consequential reliefs. The suit was decreed by the trial court and the decision of the trial court has been confirmed in appeal. The first defendant in the suit is aggrieved by the concurrent decisions of the courts below and hence this second appeal.
following:-
(i) The plaint A schedule consists of three items
of properties. The plaint B schedule consists of two items of properties, of which item No.1 is a portion of the plaint A schedule item No.1 property and item No.2 is the plaint A schedule item No.2 property. The plaint schedule properties originally belonged to a Nair tharavad called Matharical tharavad and the same was outstanding on a possessory mortgage in favour of the grandfather of the plaintiffs, namely
SA.No.777 of 1998
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Nallathampi. Nallathampi had five children, namely Abraham, Lavy, Jacob, Mathias and Samuel. During 1103ME, Nallathampi sub-mortgaged a portion of the mortgage holding, namely the plaint B schedule properties, in favour of one of his sons namely Jacob and a few others. Ext.A8 is the mortgage deed executed by Nallathampi in this connection. The first defendant is the son of Jacob. The rights of the mortgagees under Ext.A8 mortgage came to be vested in the first defendant in course of time absolutely by succession and assignment. In the meanwhile, Nallathampi died. On the death of Nallathampi, the right held by Nallathampi as mortgagor under Ext.A8 mortgage devolved on his children. One of the sons of Nallathampi, namely the fifth defendant, thereupon instituted O.S.No.27/1950 for redemption and separate possession of his 1/5th share in the mortgage holding. The said suit was decreed permitting the fifth defendant to redeem his 1/5th share in the mortgage holding and in execution of the said decree, the fifth defendant obtained
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delivery of his 1/5th undivided share in the mortgage holding.
The plaintiffs are the children and legal representatives of Lavy, another son of Nallathampi. The case set out by them in the plaint is that as in the case of the fifth defendant, 1/5th right of the mortgagor under Ext.A8 mortgage devolved on their father Lavy and the said right came to be vested in them on his death and that therefore they are also entitled to redeem 1/5th share in the mortgage holding as done by the fifth defendant. The suit was, therefore, for redemption of Ext.A8 mortgage in so far as it relates to their 1/5th share in the mortgage holding and for consequential reliefs.
(ii). As the appeal is one preferred by the first defendant, it is unnecessary to mention the contentions taken by the defendants other than the first defendant. In the written statement filed by the first defendant, it was contended by him, among others, that the suit is barred by limitation. It was also contended by the first defendant in his written statement that the suit is barred by res judicata in the light of the decision in
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O.S.No.182/1971 filed by the first defendant against the fifth defendant and others including the plaintiffs.
(iii) The trial court rejected the plea of limitation taken by the first defendant holding that he has acknowledged the liability under Ext.A8 mortgage in various documents including Ext.A2 release deed and that the suit is, therefore, not barred by limitation. As regards the plea of res judicata taken by the first defendant, it was held by the trial court that the first defendant has not adduced any evidence in support of the said plea. Consequently, the suit was decreed by the trial court. The first defendant challenged the decision of the trial court in appeal, raising, among others, the contentions that the suit is barred by limitation as also that it is barred by res judicata . The appellate court also found that the first defendant has acknowledged Ext.A8 mortgage in various documents including Ext.A2 release deed. As regards the plea of res judicata , the appellate court found that the decision in O.S. No.182/1971 has not become final and, therefore, the
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same would not operate as res judicata . The appellate court, in the circumstances, confirmed the decision of the trial court. As noted, the first defendant is aggrieved by the decisions of the courts below.
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not sufficient for the plaintiffs to get over the plea of limitation taken by the first defendant. The contention raised by the learned counsel in this regard is that since the plaintiffs had a longer period of limitation under the Limitation Act, 1908 ('the 1908 Act') for institution of the present suit before coming into force of the Limitation Act, 1963 ('the 1963 Act'), as the suit was filed when the 1963 Act was in force, the same should have been instituted within 7 years next after the commencement of the 1963 Act as provided for under Section 30 of the said Act. According to the learned counsel, since the 1963 Act came into force with effect from 01.01.1964, the suit should have been instituted before 31.12.1970 and since the suit was not instituted before the said date, the same is barred by limitation. It was pointed out by the learned counsel that a larger period of limitation is available only to such suits falling within the proviso to clause (a) of Section 30 of the 1963 Act and the instant case is not one falling within the said proviso. The learned counsel placed reliance on the bench decision of
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the Rajasthan High Court in Sumermal and others v. Birdhichand and others [AIR 1958 Rajasthan 318] , in support of the said contention. As regards the plea of res judicata , it was contended by the learned counsel that the view taken by the trial court that the first defendant has not adduced any evidence in support of the same and the view taken by the appellate court that the decision in O.S.No.182/1971 has not become final, are incorrect. It was pointed out by the learned counsel that the first defendant has adduced sufficient and more evidence in support of the plea of res judicata raised by him and it is in ignorance of the said evidence that the trial court held that the first defendant has not adduced evidence in support of the plea. It was pointed out tha t Exts.B5, B6, B7, B9 and B10 which are copies of the plaint, judgment, written statement, the final decree and final judgment respectively in the said suit would establish the plea of res judicata taken by the first defendant.
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representatives of the plaintiffs contended that the acknowledgment made by the first defendant in Ext.A2 release deed would save the limitation for the present suit and that the suit is well within the time provided for under Section 30 of the 1963 Act. It was also contended by the learned counsel that Exts.B5, B6, B7, B9 and B10 would not show that the suit is barred by res judicata in the light of the decision in O.S. No.182 of 1971.
Exts.B5, B6, B7, B9 and B10 documents that the trial court held that the first defendant has not adduced any evidence in support of their plea that the suit is barred by res judicata . In the light of Ext.B9 final decree in O.S. No.182 of 1971, the finding rendered by the appellate court that the decree in the said suit has not become final is also incorrect. As the suit is one of the year 1974 and as the plea of res judicata taken by the first defendant is one that could be gone into by this Court
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based on the materials on record, the substantial questions
arising for consideration in the second appeal have been re-framed thus:
that governs a suit is the law of limitation that is in force at the
time of institution of the suit. The law of limitation that was in
force at the time of institution of the suit was the 1963 Act. The issue relating to the limitation is, therefore, to be resolved in accordance with the 1963 Act. Ext.A8 mortgage deed is one executed on 23.09.1103ME, corresponding to 07.05.1928 . Prior to the 1963 Act, suits of the instant nature were governed by the 1908 Act and the period of limitation prescribed for identical suits under the 1908 Act was 60 years. Ext.A2 which contains the acknowledgment of Ext.A8 mortgage is a release
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deed executed by the first defendant on 24.11.1961. The fact that the suit was not barred by limitation under the 1908 Act as on 24.11.1961 is not disputed. As such, in the light of Section 19 of the 1908 Act identical to Section 18 of the 1963 Act, the plaintiffs were entitled to a further period of 60 years from 24.11.1961. The contention of the first defendant is that in so far as the period of limitation prescribed for identical suits under the 1908 Act has been reduced to 30 years under the 1963 Act, the suit should have been instituted within the time prescribed under Section 30 of the 1963 Act dealing with such suits. Section 30 of the 1963 Act reads thus:-
“ 30. Provision for suits, etc., for which the prescribed period is shorter than the period prescribed by the Indian Limitation Act, 1908 - Notwithstanding anything contained in this Act-
(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 (9 of 1908), may be instituted within a period of [seven years] next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908 (9 of 1908), whichever period expires earlier:
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[Provided that if in respect of any such suit, the said period of seven years expires earlier than period of limitation prescribed therefor under the Indian Limitation Act, 1908 (9 of 1908) and the said period of seven years together with so much of the period of limitation in respect of such suit under the Indian Limitation Act, 1908 (9 of 1908), as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under this Act, then, the suit may be instituted within the period of limitation prescribed therefor under this Act.]
(b) any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 (9 of 1908), may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act, 1908, whichever period expires earlier.”
Clause (a) of Section 30 extracted above unambiguously provides that any suit for which the period of limitation is shorter than the period of limitation prescribed under the 1908 Act may be instituted within a period of 7 years next after the commencement of the 1963 Act or within the period prescribed under the 1908 Act whichever period expires earlier. It is evident from the said provision that if the period of limitation for a suit is reduced under the 1963 Act, the benefit of
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acknowledgment made during the period during which the 1908 Act was in force would be available only for the maximum period of seven years made mention of in Section 30 of the 1908 Act. The proviso to clause (a) of Section 30, however, carves out an exception to the main provision contained in clause (a). It clarifies that if in respect of any such suit, the period of seven years made mention of in clause (a) expires earlier than the period of limitation prescribed therefor under the 1908 Act and the said period of seven years together with so much of the period of limitation in respect of such suits under the 1908 Act as has already expired before the commencement of the 1963 Act is shorter than the period prescribed for such suits under the 1963 Act, then, the suit may be instituted within the period of limitation prescribed under the 1963 Act. In the light of Ext.A2 acknowledgment, though the plaintiffs had a further period of 60 years from 24. 11.1961 to institute the suit, there is no doubt that if their case would not fall within the proviso to clause (a)
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to Section 30, they ought to have instituted the suit within seven years from 01.01.1964. The question therefore, is as to whether the proviso to clause (a) of Section 30 would apply in their case. It cannot be disputed that the period of seven years made mention of in clause (a) of Section 30 expires in the instant case earlier than the period of limitation prescribed for the suit under the 1908 Act and the said period of seven years together with so much of the period of limitation under the 1908 Act as has been already expired, namely 2 years and 37 days, is shorter than 30 years prescribed under the 1963 Act for such suits. The proviso to clause (a) of Section 30 of the Act, therefore, applies to the instant case and the suit being one instituted within 30 years from 24.11.1961 is well within the period of limitation.
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much of the period of limitation in respect of such suits under the 1908 Act as has already expired before the commencement of the 1963 Act, is longer than the period prescribed for such suits under the 1963 Act. The aforesaid contention is taken on the basis that the period of limitation prescribed for the suit under the 1908 Act is to be determined with reference to the date of mortgage and not with reference to the date of the acknowledgment, namely the date of Ext.A2 release deed. In other words, the contention is that the plaintiffs are not entitled to the benefit of the acknowledgment made by the first defendant in terms of Ext.A2 release deed for the purpose of reckoning the period of limitation prescribed for the suit under the 1908 Act for application of clause (a) of Section 30 of the 1963 Act. There is no substance in this argument. As noted, it is not disputed that in the light of Section 19 of the 1908 Act, the plaintiffs were entitled to a further period of 60 years from 24.11.1961 for instituting a suit for redemption of Ext.A8 mortgage. It is now trite that the
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Limitation Act being a procedural law, it has to be interpreted in a manner which promotes the cause of justice, and never in a manner defeating the cause of justice. On an analysis of the provisions contained in Section 30 of the 1963 Act, in the light of the principle aforesaid, I am of the view that wherever Section 30 of the 1963 Act refers to the period of limitation prescribed for a suit under the 1908 Act, it has to be understood having regard to the provisions contained in the 1908 Act extending the period of limitation prescribed in the schedule to the said Act as well, for the expression 'period of limitation under the 1908 Act' contained in Section 30 of the 1963 Act means not merely the period of limitation prescribed in the schedule to the 1908 Act. It means the period of limitation prescribed in terms of the 1908 Act of which the schedule is only a part. It is seen that though there was not much discussion on the point, an identical plea of limitation was rejected by the Apex Court taking the aforesaid view in Prabhakaran v. M. Azhagiri Pillai [(2006) 4 SCC 484].
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Paragraph 26 of the judgment in the said case reads thus:
“When the said deed of assignment was executed on 12.02.1954, the mortgage dated 07.09.1935 was subsisting, as the period of limitation at that time was 60 years. In view of the admission of jural relationship contained in the assignment deed, operating as an acknowledgment of liability, a fresh period of limitation started from 12.02.1954. When the suit was filed on 16.11.1981, the new Limitation Act was in force under which the period of limitation was 30 years. When the 30 years' period is computed from 12.02.1954, the suit filed in the year 1981 was clearly within limitation.”
I do not find anything that supports the argument of the learned counsel, in Sumermal and others v. Birdhichand and others (supra). Question (1) is thus answered against the appellant.
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plaintiffs for the present suit. Ext.B5 is the plaint in O.S. No.182 of 1971. Ext.B5 indicates that O.S. No.182 of 1971 is a suit in respect of a portion of the plaint B schedule properties. The plaint indicates that the case set out by the first defendant as plaintiff in the said case as regards the portion of the plaint B schedule property is that the fourth defendant has obtained redemption of his 1/5th share out of the holding under Ext.A8 in terms of the decree in O.S. No.27 of 1957; that he released a portion of the remaining holding to the first defendant; that Ext.A8 mortgage has become barred by limitation and that since the properties are in the joint possession of the parties, he is unable to enjoy his share of the property conveniently. The suit was, therefore, for partition of his share in the portion of the mortgage holding under Ext.A8 which is scheduled in the suit. Ext.B6 is the judgment in O.S.No.182 of 1971. Ext.B6 indicates that by the time the said case was taken up, the present suit has already been instituted and in the light of the institution of the present suit, the first defendant did not
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pursue his contention that Ext.A8 mortgage has become barred by limitation, and pursued only for relief based on the possession of the parties. It is seen that in the circumstances, the contention taken by the first defendant that Ext.A8 mortgage has become barred by limitation has been left open to be decided in the present suit and a decree was passed for partition on the basis of the possessory rights established by the parties. The issue in the present suit is as to the entitlement of the plaintiffs to redeem Ext.A8 mortgage in so far as it relates to their share. The said issue was never adjudicated in O.S.No.182 of 1971. The only issue in that suit that would have affected the right of the plaintiffs to pursue the present suit was as to whether Ext.A8 mortgage has become barred by limitation. As noted, that issue has not been adjudicated in the suit.
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was passed in the said suit in respect of the rights of the plaintiffs under Ext.A8 mortgage as well and that therefore, the plaintiffs cannot claim partition of their rights under the mortgage any more and it is on that basis that the first defendant has raised a plea of res judicata in the suit. As the entire mortgage holding except the share of the fourth defendant was in the possession of the first defendant and his transferees and as the plaintiffs' share of the mortgage holding was not redeemed at the time of institution of O.S. No.182 of 1971, the plaintiffs could not have claimed partition of their rights in the said suit. But it is seen that though the plaintiffs did not seek any decree for partition of their 1/5th share of Ext.A8 mortgage in the suit, the trial court declared that the plaintiffs have 1/5th share in the mortgage holding. The said part of the decree was not executable at all without the plaintiffs redeeming their share of the mortgage. Ext.B9 is the final decree and Ext.B10 is the final judgment in O.S.No.182 of 1971. No share was allotted to the plaintiffs in terms of Ext.B9
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final decree. Instead, it is seen that in Ext.B9 final decree, it was directed that the share of property due to the plaintiffs and others shall be left apart. Merely for the reason that the court has declared in O.S.No.182 of 1971 that the plaintiffs have 1/5th share in the mortgage holding, the said judgment will not operate as res judicata against the plaintiffs and preclude them from instituting a suit for redemption of their portion of the mortgage and for consequential partition. It is all the more so since O.S.No.182 of 1971 is a suit filed by the first defendant himself. The contention raised by the first defendant that the suit is barred by res judicata is also, therefore, unsustainable. Question (2) is also thus answered against the appellant.
The second appeal, in the circumstances, is devoid of merits and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR
JUDGE
aks/12.10.2018
3 issues framed by the court
Whether an acknowledgment of a mortgage deed made during the period of the 1908 Limitation Act saves the period of limitation for a redemption suit instituted under the 1963 Act when the suit falls wi
Whether a prior suit for partition filed by the defendant against the plaintiffs operates as res judicata when the issue of limitation regarding the mortgage was not adjudicated in that suit.
Whether the right to redeem a 1/5th share in a mortgage holding barred from partition in a prior decree precludes a subsequent suit for redemption of that share.
Colour shows how this judgement treated each authority
Sumermal and others v. Birdhichand and othersDoubted¶82
Sumermal and others v. Birdhichand and others [AIR 1958 Rajasthan 318] · Who else cites this
Prabhakaran v. M. Azhagiri PillaiExplained¶124
Prabhakaran v. M. Azhagiri Pillai [(2006) 4 SCC 484] · Who else cites this
VASUMATHY
GOURI VASUMATHY
P.B. SURESH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
