Case Note & Summary
The dispute arose from a civil appeal by special leave against a judgment of the Gujarat High Court in Second Appeal No.294/78, confirming a decree for redemption of a mortgage. The original mortgage was executed in 1911 by Bai Jivi, widow of Gala, in favour of Kana for a period of 31 years. Bai Jivi died in 1955, and the property was succeeded by Hati, daughter of the respondent predecessor-in-title, in 1965. In 1935, Shivi, wife of the mortgagee Kana, executed a second mortgage in favour of Kuber; later Shivi filed a suit for redemption of that mortgage and became the owner. The respondents filed a suit for redemption of the original mortgage. The trial court dismissed the suit, but the Additional District Judge, Mehsana decreed it on condition that the plaintiff deposit Rs 112.50 by 31 July 1978. The High Court confirmed this decree. The appellants contested the redemption on two main grounds: first, that as the grandson of Amichand, they were nearer sapindas within seven degrees and thus had preferential right of succession over Hati; second, that the suit was barred by limitation under Article 61(b) of the Limitation Act, 1963 because the second mortgage was executed in 1935, and the suit was filed beyond 12 years from the date of that transfer. The Supreme Court rejected the preferential succession claim, upholding the appellate court's finding that Joitaram was entitled to inherit Gala's properties in preference to the appellant and his father. Under the Baroda Hindu Nibandh, Joitaram's widow, being the mother of Bai Jivi, was deemed to inherit as if her husband were alive at Bai Jivi's death. Hati's mother became the absolute owner after 1 August 1965, and Hati inherited validly either under the Baroda Hindu Nibandh or the Hindu Succession Act, 1956. On limitation, the Court held that Article 61(b) was not attracted because Bai Jivi or her successor were not made parties to the second mortgage or the redemption suit, and no acknowledgment of adverse claim was pleaded; that contention was not pressed. Instead, the High Court correctly applied Section 30 of the Limitation Act, 1963, which extended the limitation period by seven years. Under the old Limitation Act, 1908, the period for redemption was 60 years; under the new Act it was 30 years, with an additional seven years under Section 30. The suit filed on 18 June 1970, after the 1963 Act came into force on 1 January 1964, was thus within the extended period. The Court reiterated the principle that once a mortgage is always a mortgage until duly redeemed within limitation. Accordingly, the Supreme Court dismissed the appeal without costs, confirming the decree for redemption.
Headnote
A) Succession - Hindu Law - Preferential Heirship - Baroda Hindu Nibandh; Hindu Succession Act, 1956 - The appellant claimed preferential succession as a nearer sapinda within seven degrees over Hati, a distant relation. The appellate court found that Joitaram inherited Gala's property in preference to the appellant and his father; under Baroda Hindu Nibandh, Joitaram's widow (mother of Bai Jivi) was entitled to inherit as if her husband were alive at Bai Jivi's death, and Hati's mother became absolute owner after 1 August 1965. Bai Hati therefore inherited validly. Held that the appellant had no preferential right of succession (Paras 1-3). B) Limitation - Mortgage Redemption - Article 61(b) Limitation Act, 1963 - Suit by mortgagor to recover possession after mortgagee's transfer for valuable consideration must be filed within 12 years from knowledge of transfer. The court noted that Bai Jivi or her successor were not made parties to the second mortgage or redemption suit, and no acknowledgment of hostile title was pleaded; the contention was not pressed. Held that once a mortgage is always a mortgage until duly redeemed within limitation, and Article 61(b) did not bar the suit (Paras 2-3). C) Limitation - Extension of Period - Section 30 Limitation Act, 1963 read with Limitation Act, 1908 - The suit for redemption filed on 18 June 1970 after the 1963 Act came into force on 1 January 1964. The old 1908 Act provided 60 years for redemption; the 1963 Act provided 30 years with a seven-year extension under Section 30. The High Court correctly computed the limitation period by adding seven years to 30 years, making the suit within time. Held that the suit was not barred by limitation (Paras 3).
Issue of Consideration
Whether the appellant had a preferential right of succession over the respondent's predecessor-in-title under applicable Hindu law; whether the suit for redemption was barred by limitation under Article 61(b) of the Limitation Act, 1963 or otherwise
Final Decision
The Supreme Court dismissed the appeal without costs, upholding the High Court's dismissal of the second appeal and confirming the decree for redemption upon deposit of Rs 112.50 by 31 July 1978
Law Points
- Succession under Baroda Hindu Nibandh and Hindu Succession Act
- 1956 determines preferential heirship
- once a mortgage is always a mortgage until duly redeemed within limitation
- limitation for redemption suits extended by Section 30 of Limitation Act
- 1963
- Article 61(b) of Limitation Act
- 1963 requires knowledge of transfer by mortgagee
