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PETITIONER: PATEL BHUDARBHAI MAGANBHAI & ANR.

       Vs.

RESPONDENT: PATEL KHEMABHAI AMBARAM & ORS.

DATE OF JUDGMENT:       11/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment of the  learned single Judge of the Gujarat High Court, made on 24.2.1986 in Second Appeal No.294/78. The first appellant is the  son of  Maganbhai. Bai Jivi, widow of Gala mortgaged the property  in 1911 to Kana for 31 years. Bai Jivi died in the year  1955. The property was succeeded by Hati, daughter of  the   respondent  predecessor  in  title  in  1965.  The respondents filed  the suit  for redemption of the mortgage. The trial  Court dismissed  the  suit  but  on  appeal,  the Additional District  Judge, Mehsana decreed the suit holding thus:      "On   the    plaintiff   depositing      Rs.112.50  p.  on  or  before  31st      July, 1978  in the Trial Court, all      documents in  possession  or  power      relating to  mortgaged property and      all   such   documents   shall   be      delivered over to the plaintiff and      defendant No.2 shall if so required      recovery  or  retransfer  the  said      mortgaged property  free  from  the      said mortgage and clear of and free      from  all  encumbrances  crated  by      defendant No.2  or  by  any  person      claiming under  him or  any  person      through whom  he  claims  and  also      free from  all liability whatsoever      arising  from  the  mortgage,  and,      shall, if  so required,  deliver up      to the plaintiff quiet and peaceful      possession of the said property."      In the  second appeal  it  was  confirmed.  Thus,  this appeal by special leave.      Shri  Dholakia,   learned  senior   counsel   for   the appellant, contends  that in  view of  the pedigree  of  the parties, the  appellant is  grand-son of Amichand while Hati is a  distant relation  represented through Dansang who were sons of  Rupsang. Gali  is the  grand-son of Jekaran. One of the sons  of Rupsang  being nearer  in relation within seven

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degrees the  appellant is  entitled to  a preferential right for succession  than  the  respondents-predecessor-in-title. There is  a controversy  as to  when the  widow of  Joitaram died. In  that behalf, the appellate Court having considered the entire evidence had concluded thus:      "Hence  Joitaram  was  entitled  to      inherit  properties   of  Gala   in      preference to  defendant Bhudarbhai      Magandas and  even his  father  and      grand-father who  will come  in the      category of  Samandaks. Looking  to      the  provisions   of  Baroda  Hindu      Naibahdh,   widow    of    Joitaram      Kashidas, i.e.,  mother of Bai Jivi      was   entitled   to   inherit   the      properties  of   Gala  as   if  her      husband was  alive at  the time  of      death of  Bai Jivi.  That  way  Bai      Hati’s  mother   was  entitled   to      inherit the  properties of  Gala on      the death  of Bai  Jivi as  a widow      Sagotra Sapindas and that way we an      say that  Bai Hati’s  mother became      the owner  of the suit property and      on the  death of  bai  Jivi  Hati’s      mother died  some time  in the year      1965. We  can take it that she must      have died  after 1.8.1965  and that      way she  was the  absolute owner of      the properties  when she  died. Bai      Hati, thus,  be entitled to inherit      those   properties   either   under      Baroda Hindu  Nibandh or even under      the Hindu Succession Act, 1956"      In view  of the above finding, we do not find any force in the  contention of Shri Dholakia that the appellant is an preferential heir to the respondent predecessor in title.      He further  contends that by operation of Article 61(b) of the Schedule to the Limitation Act, 1963, the appellants- predecessor-in-interest  also   became  the   owner  of  the property and  the right  to recover possession from them was barred by  limitation since the suit came to be filed beyond 12 years  from the  date of  the second  redemption  of  the mortgage. In  this behalf,  it is  necessary to  note a  few relevant facts.  As stated  earlier, Bai  Jivi mortgaged the property to Kana who is a mortgagee. His wife, Shivi appears to have  executed a  mortgage on  13.5.1935 in favour of one Kuber. Subsequently,  in 1965,  Bai Shivi  filed a suit O.S. No. No.69/1956  for redemption  of the  mortgage executed by her on  31.5.1935 and  she became the owner of the property. It is  stated that  in assertion  of her  right as an owner, Shivi  executed   the  mortgage  in  favour  of  Kuber.  Her assertion was  to the  knowledge of  predecessor in title of the respondent and, therefore, the suit or redemption should have been  filed within  12  years  from  the  date  of  the execution of  the second  mortgage. Clause (b) of Article 61 provides that a suit by a mortgagor to recover possession of immovable property  mortgaged and  afterwards transferred by the mortgagee  for a valuable consideration, has to be filed within 12  years from  the date  of which  transfer  becomes known to  the plaintiff.  It is  settled legal position that once a  mortgage is  always a  mortgage  until  it  is  duly redeemed within  the period  of limitation.  It is seen that Bai Jivi  or her successor-in interest were not made parties either to  the second  mortgage executed  on 31.5.1975 or to

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the suit  for redemption  nor any  acknowledgement  in  that behalf has been pleaded or established. It is also seen that in the  plaint the  only pleading was that Hati became aware of the  execution of  the mortgaged  in favor  of the second mortgagee in 1935. It is true that Bai Jivi had knowledge of assertion of  any hostile title either as an owner or of any other title  detrimental to  her interest  and acquiesced to it; perhaps  the contention  bears relevance.  Bai Jivi  had knowledge of  such execution  of mortgage  though Shivi.  On redemption, Shivi  became mortgagee.  Obviously,  therefore, this contention  was not  pressed. On  the other  hand,  the contention in the High Court was that the suit was not filed within the  period of  limitation of 30 years, after the Act had come  into force.  Relying upon  Section 30  of the Act, since it  extended the period by seven years, the High Court held that  under the  Act  after  the  expiry  of  60  years provided under  the old  Limitation Act,  1908 and within 30 years and  seven years’ extended period, the suit came to be filed on  18th June,  1970. The  Act had  come into force on January 1,  1964. Tagging  the period of limitation provided under the  Act, namely,  30 years  and seven years, the suit was within limitation. The High Court has held that the suit was not  barred by  limitation. In the appellate Court also, two more  contentions on  limitation which  were not  argued before  the   High  Court,  were  addressed  and  they  were negatived. Since  they have  not been  repeated here,  it is necessary for us to go into these questions. Considered from this perspective,  we think that the High Court was right in dismissing the second appeal.      The appeal is accordingly dismissed but without costs.