TaxTMI 
TaxTMI 
1963 (12) TMI 28
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....ich belonged to the Alyasantana family 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 Rs. 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 Rs. 227-10-8) situated in Warg No. 34 of Kumbadaje village, Netanige Magne. Bekal taluk (the whole ....
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....s, by Aliamma, 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 Rs. 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 E....
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....akki in 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 wh....
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....of interest) (Ex. P-1 read with Ex. P-2). Later, Kunhi Pakki executed a simple mortgage Ex. P-61 for Rs. 2,000 on February 11, 1892 in favour of one Anantha Kini. The property, this time, was said to be of the beriz of Rs. 56 odd and also property of the beriz of Rs. 28-7-4 and Rs. 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 Rs. 32,000 in favour of one Vaikunta Bhakta. Several lots of properties were included and item 18 referred to property of the beriz of Rs. 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 that Ex. P-2 was one of them. Vaikunta Bhakta transferred the mortgagee rights....
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....ficance 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 Rs. 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 Rs. 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 Hajjumma and others in favour of ourselves and others are as follows : x &nb....
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....Ex. P-4, which was a usufructuary mortgage by the original mortgagors in favour of Hammada Kunhi dated May 29, 1877. This document makes a reference to the earlier documents of Kunhi Pakki in respect of the released properties. It refers specially to Ex. P-2 and states that property was now being held on a usufructuary mortgage with a time-limit. 17. It was contended in this case on behalf of the mortgagees that the 1/4th share of Kunhi Pakki, on which time-limit was not imposed, because Kunhi Pakki was a minor when Ex. P-2 and P-2(a) were executed, could not be redeemed by the plaintiff as the suit in respect of them was time-barred. To understand this contention, it is necessary to give a short history of the Law of Limitation between the years 1842 and 1902. In 1842 when Ex. P-1 was executed, there was no law prescribing a period of limitation for the 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 tim....
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....lso admits that he cannot make out case under Art. 134 of the Indian Limitation Act. He contends that the doctrine of election is but a species of estoppel and there can be no estoppel against law especially against the Limitation Act, because of s. 3 of that Act. He relies upon a decision of the Madras High Court reported in Sitarama Chetty and Anr. v. Krishnaswami Chetty [(1915) I.L.R. Mad., 38, 374.] where White C.J. quoting a passage from Mr. Mitra's book on the Law of Limitation, observes that an agreement by a person against whom a cause of action has arisen, that he would not take advantage of the statute, cannot affect its operation on the original cause of action, unless such agreement amounts to an acknowledgment of liability which the statute recognises as an exception to the rule. Mr. Desai also relies upon Govardhan Das v. Dau Dayal [(1932) 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) c....
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.... deed or will must adopt the whole contents of the instrument." 21. The Indian Courts have applied this doctrine in several cases and a reference to all of them is hardly necessary. We may, however, refer to a decision of the Madras High Court in Ramakottayya v. Viraraghavayya where after referring to the passage quoted by us from White and Tudor, Coutts Trotter, C.J. observed that the principle is often put in another form that a person cannot approbate and reprobate the same transaction and he referred to the decision of the Judicial Committee in Rangaswami Gounden v. Nachiappa Gounden [(1918) I.L.R. 42 Mad. 523.]. Recently, this Court has also considered the doctrine in Bhau Ram v. Baij Nath Singh and others. 22. The short question is whether, in the words of the Scottish lawyers Kunhi Pakki can be said to have approbated Ex. P-2 and P-2(a) 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 re....