Case Note & Summary
The appellants, original plaintiffs, filed Second Appeals against a common judgment and decree of the Appellate Court dismissing their suit for redemption of a possessory mortgage. The suit property was mortgaged by the appellants' father, Aminoddin, by a deed of possessory mortgage dated 30th November 1938 in favour of Girmallya Kallya Swami for a period of 36 years for Rs.800. Aminoddin had a six annas share in the suit property. The mortgage period expired in 1974. The appellants filed the suit for redemption in 1984, i.e., 10 years after the expiry of the mortgage period. The trial court dismissed the suit holding that the suit was barred by limitation and that the mortgagee had acquired title by adverse possession. The first appellate court confirmed the findings. In second appeal, the appellants contended that the courts below erred in applying Article 61(a) of the Limitation Act, 1963, which provides a 30-year period for redemption from the date the right to redeem accrues. The court noted that the right to redeem accrued in 1974 when the mortgage period ended, and the suit filed in 1984 was within 30 years, but the court held that the suit was filed beyond the period of limitation because the mortgage was executed in 1938 and the right to redeem accrued only after 36 years, i.e., in 1974, and the suit was filed in 1984, which is within 30 years from 1974. However, the court also considered the plea of adverse possession. The trial court and first appellate court had concurrently found that the mortgagee had been in possession for over 12 years after the mortgage debt was extinguished by limitation, and thus had perfected title by adverse possession. The High Court held that no substantial question of law arose for consideration in second appeal as the findings of fact were based on evidence and were not perverse. The court also noted that the second appeal had been dismissed against several respondents earlier. Accordingly, both Second Appeals were dismissed with no order as to costs.
Headnote
A) Limitation - Redemption of Mortgage - Article 61(a) Limitation Act, 1963 - Suit for redemption filed beyond 30 years from expiry of mortgage period is barred - The mortgage was for 36 years from 1938, expiring in 1974; suit filed in 1984 was beyond 30 years from 1974, hence barred by limitation (Paras 5-6). B) Adverse Possession - Mortgagee - Transfer of Property Act, 1882 - Mortgagee in possession can claim adverse possession after mortgage is extinguished - Once the mortgage debt is extinguished by limitation, the mortgagee's possession becomes adverse to the mortgagor - The trial court and first appellate court concurrently found that the mortgagee had perfected title by adverse possession (Paras 7-8). C) Second Appeal - Interference with Concurrent Findings - Section 100 CPC - No substantial question of law arises when findings of fact are based on evidence - The High Court cannot re-appreciate evidence in second appeal unless findings are perverse - The concurrent findings on limitation and adverse possession were not shown to be perverse (Paras 9-10).
Issue of Consideration
Whether the suit for redemption of a possessory mortgage was barred by limitation and whether the mortgagee had acquired title by adverse possession.
Final Decision
Both Second Appeals are dismissed with no order as to costs.
Law Points
- Limitation for redemption of mortgage
- Adverse possession by mortgagee
- Concurrent findings of fact not interfered with in second appeal
- Section 60 of Transfer of Property Act
- 1882
- Article 61(a) of Limitation Act
- 1963
