TaxTMI 
TaxTMI 
1963 (12) TMI 28
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....ily of the second respondent. On April 14, 1842, one Madana, who was then the Ejaman of the family, usufructuarily mortgaged the A, B and C schedule properties in favour of one Kunhammu Hajar for 1250 varahas or pagodas (equal to ₹ 5,000) under Ex. P-1. This deed did not contain any provision for repayment of the amount or for the usufructuary mortgage to be worked off. It contained a clause to the following effect : "At the end of the cultivation season, whenever you state that the said land is not required, the said one thousand, two hundred and fifty varahas due to you and also the value of improvements shall be paid to you in one lump-sum and the said land, house, cattle-shed, out house, etc. shall be obtained back from you, and this document as well as the previous documents shall be got redeemed." 3. Though the mortgage deed was taken ostensibly in his own name by Kunhammu Hajar, he did so on behalf of his brothers, sisters, nephews and nieces etc. The mortgaged property was described as land bearing a beriz of 44 1/2 pagodas (equal to ₹ 227-10-8) situated in Warg No. 34 of Kumbadaje village, Netanige Magne. Bekal taluk (the whole Warg bore a beriz of ....
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....mma, the widow of Kunhammu Hajar, who signed for herself but not on behalf of Kunhi Pakki her minor son by Kunhammu Hajar. Kunhi Pakki's share in the mortgage was thus not represented in Exs. P-2 and P-2(a). Kunhi Pakki died in 1934 and the first defendant, also Kunhi Pakki who is the third respondent in this appeal, is his grand-son. It may be mentioned that the two deeds which created a charge and which were to be discharged along with Ex. P-1 and P-2 have been held by the High Court and the Court below to be for the principal amount of ₹ 2,000. We may now omit for the time being a reference to the further devolution of the share of Kunhi Pakki son of Kunhammu Hajar in respect of whose share in Ex. P-1 the main dispute in the case has arisen. We shall mention those details later. 6. The present suit was filed for redemption of Ex. P-2 by the first and the second respondents. The first respondent purchased schedule A properties in July 1943 by Ex. P-83 and undertook to redeem the mortgaged properties described in schedules A and B and to hand over possession of schedule B properties to the legal representative in the family of Madana. Respondent No. 2 the then Elamanthi....
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....n respect of documents Ex. P-2 and P-2(a). 8. In this appeal, it is contended that the conclusions of the High Court with regard to limitation and the doctrine of election were erroneous further that the High Court was in error in awarding mesne profits from the date fixed in the preliminary decree for redemption, in view of the fact that the High Court found an increased amount in respect of improvements and the amount of improvements had to be paid for in full before redemption could be claimed. Before we deal with these points, we must narrate more facts. 9. The present appeal has been filed by Beepathumma the legal representative of deft. 8-C. Mahamood son of Abdul Rahimam Haji, who died during the pendency of the appeal in the High Court and by the daughter (deft. 9) and the sons (defts. 52, 67 and 68) of C. Mahamood; the other appellants are Abdulla (deft. 49) son and Bipathumma (deft. 50) daughter of Mammachumma (deft. 48). This Mammachumma was the sister of Kunhi Pakki son of Kunhama Hajar. These names have to be borne in mind because they are connected with the 1/4th share which on partition went to Kunhammu Hajar by Ex. P-6, and will figure in the narrative which follow....
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....fructuary mortgage for a fixed term in lieu of interest) (Ex. P-1 read with Ex. P-2). Later, Kunhi Pakki executed a simple mortgage Ex. P-61 for ₹ 2,000 on February 11, 1892 in favour of one Anantha Kini. The property, this time, was said to be of the beriz of ₹ 56 odd and also property of the beriz of ₹ 28-7-4 and ₹ 14-3-8. In other words, he was mortgaging the entire 7/16th share (1/4th plus 3/16th). No boundaries were given but it was stated that the boundaries were the same as in the mortgage deed of January 18, 1887 in favour of Laxmana Bhakta. This document recited that no other documents were handed over, but the mortgagor undertook to send them latter. On September 29, 1902, Kunhi Pakki, his wife Beepathumma and his son Kunhammu executed a usufructuary mortgage (Exs. P-62) for ₹ 32,000 in favour of one Vaikunta Bhakta. Several lots of properties were included and item 18 referred to property of the beriz of ₹ 98-11-0 in Belinjada Maindana Kinyana (Warg No. 34). This showed that he was mortgaging his 1/4th share and 3/16th share of Cheriamma. A recital showed that all "Voladocuments" were handed over and evidence has established ....
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....dules A, B and C in the plaint and mentioned in Ex. P-1 on the same footing. The significance of 32 years' term is quite clear. This mortgage was to run for the same period for which the other mortgage deed was to run. It was stated in this document that Kunhi Pakki was already enjoying the other property out of property bearing a beriz of ₹ 227-10-10 of Warg No. 34 under a usufructuary mortgage with a time limit by virtue of a registered document of 1862 executed by Kunhi Pakki's mother Aliamma. Certain recitals of that document may be reproduced here : "Out of the property enjoyed by you previously under usufructuary mortgage with time-limit i.e., out of the property bearing a beriz of ₹ 227-10-10 and entered in Muli No. 34 our ancestor, Maindana Kinhanna varg in Kumbadaje village, the said Nettanige magne attached to the sub-district of Kasaragod, South Kanara district, in respect of which property the entire tirve is paid by yourself, the particulars of the property enjoyed by us without payment of tirve under the registered Karar (Agreement) deed executed on the 14th of Chitra Bahula of Dundubhi (1862) year (27th April 1862) by your mother Alima Hajju....
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.... redemption of a usufructuary mortgage. Such limit came in 1859 for the first time and a period of 60 years from the date of the mortgage was prescribed. It is this statute which seems to have been the cause for the execution of Exs. P-2 and P-2(a); the mortgagees were perhaps afraid that the mortgage could be redeemed at any time within 60 years from the date of the mortgage of 1842. The last date for redemption thus was 1902. By getting the term certain for 40 years, the date for redemption was shifted by them to 1902 and redemption could not take place till that year. The mortgagors also benefited, because they obtained a release of sosme properties and received ₹ 100 in cash. The period of 60 years was repeated in the Act of 1871; but it contained a rider that if during the period of 60 years, there was an acknowledgment then the period would run from the date of that acknowledgment. Art. 148 of the Limitation Act as it stands today was introduced by the Act of 1877. It makes the 60 years' period run from the time when redemption is due. The mortgagors contend that they have the benefit of the present Act read with Exs. P-2 and P-2(a) and the time for redemption will ....
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....2) I.L.R. 54 All. 573.] for the proposition that no one can contract himself out of the statute of limitation, nor can estoppel be pleaded against a statutory bar of limitation. Some other cases cited by him are not in point and need not be mentioned. On the basis of these cases, Mr. Desai contends that unless Exs. P-2 and P-2(a) can be pleaded as an acknowledgment limitation cannot be saved in respect of Kunhi Pakki's share and the suit itself must be dismissed under s. 3 of the Limitation Act. He contends that the equitable doctrine of election does not apply to the present case, because the documents on which reliance is placed refer not to the 1/4th share of Kunhi Pakki but to the 3/16th share of Cheriamma which Kunhi Pakki subsequently obtained. He states that the latter conclusion is inescapable if Exs. P-59, P-60 and P-61 are read together. He submits that in these documents Kunhi Pakki no doubt connected the 3/16th share with Exs. P-2 and P-2(a) but treated his own 1/4th share separately. 19. There is no doubt that Kunhi Pakki was not directly bound by Exs. P-2 and P-2(a). Mr. Desai is right in contending that as Kunhi Pakki was a minor and no guardian signed on his be....
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.... and therefore his successors in title cannot now reprobate them. In this connection, Ex. P-3 and P-4 quite clearly show that Kunhi Pakki considered that he was bound by Ex. P-2(a) and the mortgagors were bound by Ex. P-2. His taking of the mortgage of the released properties clearly indicated that he accepted that the mortgagors were released from the obligations of Ex. P-1. In Ex. P-3, he took the mortgage of the released properties for a period of 32 years which made the two mortgages run for an identical term, and that document referred to the earlier transaction as one under an Avadhi Illida Arwar (usufructuary mortgage with a time limit) which indicated that the time limit imposed by Exs. P-2 and P-2(a) was in his contemplation. In all subsequent documents, reference is to be found to the Illida Arwar and the reference is not only to the 3/16th share of Cheriamma but to the entire 7/16th share of Kunhi Pakki, that is to say, his original share of 1/4th obtained by him through his father by Ex. P-6 and 3/16th share which he obtained later. In view of the fact that in this way, Kunhi Pakki obtained the enjoyment of the mortgage in respect of his 1/4th share for a period of 40 y....