C. Beepathumma And Ors. vs V.S. Kadambolithaya And Ors.
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Not extracted
Decision Date: 6 December, 1963
Coram: J.C. Shah, K. Subba Rao, M. Hidayatullah
In the matter titled C. Beepathumma and others versus V. S. Kadambolithaya and others, decided on the sixth day of December in the year 1963, the Supreme Court of India delivered a judgment authored by Justice Hidayatullah, with the bench comprising Justice J. C. Shah, Justice K. Subba Rao, and Justice M. Hidayatullah. The judgment concerned an appeal that had been admitted by way of a certificate granted by the High Court of Madras. The certificate allowed the appeal against the common judgment and decree issued on the third day of November, 1955, in the two original suits bearing the numbers 88 and 138 of 1947. The appellants comprised seven individuals selected from the original set of one hundred thirty‑nine defendants, while the respondents included the two original plaintiffs together with the original defendant designated as number one. The dispute originated from a suit that sought the redemption of a usufructuary mortgage dated the twenty‑sixth of April, 1862, and also demanded the delivery of possession of certain properties enumerated in schedules labelled A and B of the plaint, together with mesne profits calculated from the date of redemption up to the point when possession could be delivered. The mortgaged lands had, over time, been transferred to a number of different persons, a circumstance that explained why a large number of defendants had been joined in the proceedings. The Court proceeded to set out the factual background, which extended over a remarkably long historical period.
The plaint was accompanied by three distinct schedules identified as A, B, and C, each of which described properties that had formerly belonged to the Alyasantana family of the second respondent. On the fourteenth day of April, 1842, an individual named Madana, who at that time held the position of Ejaman of the family, entered into a usufructuary mortgage of the properties listed in schedules A, B, and C in favour of a person named Kunhammu Hajar. The consideration for this mortgage was fixed at twelve hundred and fifty varahas or pagodas, an amount that was equivalent to five thousand rupees, and the transaction was documented as Exhibit P‑1. The mortgage deed omitted any clause stipulating repayment of the principal sum or providing a mechanism for the usufructuary mortgage to be set off. Instead, it contained a provision stating that at the conclusion of each cultivation season, whenever the mortgagor declared that the land was no longer required, the amount of one thousand two hundred and fifty varahas, together with the value of any improvements made, would be paid in a single lump sum, after which the mortgagor would regain possession of the land, house, cattle‑shed, out‑house, and other associated structures, and that both this document and the preceding documents would be considered redeemed. Although the mortgage deed was ostensibly executed in the name of Kunhammu Hajar, it was in fact undertaken on behalf of his brothers, sisters, nephews, nieces, and other relatives. The mortgaged estate was described as land carrying a beriz valuation of forty‑four and a half pagodas, equivalent to two hundred twenty‑seven rupees, ten annas, and eight paise, situated in Warg number thirty‑four of Kumbadaje village, Netanige Magne, within the jurisdiction of Bekal taluk. The entire Warg bore a beriz of fifty‑six and a half pagodas. The description comprised thirty‑seven fields identified by name but lacking precise boundaries. In addition to the land, the mortgagees were granted possession of certain heads of cattle and other movable assets, and the deed included a separate term that dealt with the redemption of those movable assets.
In the year 1857, the family members who were mortgagees carried out a partition of the estate by means of a series of registered documents collectively referred to as Exhibit P‑6. This partition was not conducted by delineating precise metes and bounds, nor by allocating entire fields to individual parties; rather, it involved a division of the land based on the fractional share of the beriz payable to each participant. The Court’s present appeal focused solely on the portion that had been allotted to Kunhammu Hajar, whose entitlement amounted to one fourth of the total share. Within Exhibit P‑6, which served as the partition deed concerning Hajar, his share was described in the following terms: “Further, out of Belinjada land bearing a beriz of rupees two hundred twenty‑seven, ten annas, ten paise and entered in number thirty‑four maindana Kuntamma Varg of Kunvadaji village Nettanige Magne, the one‑fourth portion bearing a beriz of rupees fifty‑six, fourteen annas, eight paise and consisting of land and bavaities including border trees, soil and field attached thereto.” Other members of the family received their respective shares according to their rights, as recorded in separate documents. The earliest of these partition documents was dated the third of April, 1857, and the latest was dated the thirtieth of April, 1857. After the partition, Kunhammu Hajar passed away, and on the twenty‑sixth of April, 1862, the mortgagors and mortgagees entered into an agreement evidenced by Exhibits P‑2 and P‑2(a), which reaffirmed the original mortgage deed identified as Exhibit P‑1. However, under the terms of this agreement, the mortgagees released from Exhibit P‑1 certain properties, which are now listed in schedule C of the plaint.
In the partition that followed the mortgage, the lands were divided according to the fraction of the beriz that each heir was required to pay. The appeal concerned only the quarter‑share that passed to Kunhammu Hajar. The partition deed identified as Exhibit P‑6 described his portion as follows: out of the Belinjada land with a total beriz of Rs 227‑10‑10, entered in No. 34 maindana Kuntamma Varg of Kunvadaji village, Nettanige Magne, the one‑fourth share bore a beriz of Rs 56‑14‑8 and comprised land, Bavaities, border trees, soil and the adjoining field. Other members of the family obtained their respective shares under separate documents that were executed between 3 April 1857 and 30 April 1857. After this partition, Kunhammu Hajar died. On 26 April 1862, the mortgagors and mortgagees executed an agreement evidenced by Exhibits P‑2 and P‑2(a), which reaffirmed Exhibit P‑1 but released certain properties listed in Schedule C to the plaint. The parties agreed that the remaining properties, now shown in Schedules A and B, would be possessed by the mortgagees for a period of forty years from the date of that agreement, together with any improvements made thereon. The mortgagors further covenanted that, should they require the land after the expiry of the forty‑year term and should the mortgage amount of the usufructuary mortgage (Exhibit P‑1), together with the sums due under two other charge deeds and a Rs 100 amount taken at the execution of Exhibit P‑2, plus the amounts for improvements, be paid in a single lump‑sum, then the land and the bond would be deemed redeemed. Exhibit P‑2 was signed by the mortgagors, and a counterpart, Exhibit P‑2(a), was signed, among others, by Aliamma, the widow of Kunhammu Hajar, who signed only for herself and not on behalf of her minor son Kunhi Pakki. Consequently, Kunhi Pakki’s share in the mortgage was not represented in Exhibits P‑2 and P‑2(a). Kunhi Pakki died in 1934; the first defendant in this appeal, who is also the third respondent, is his grandson. The two deeds that created a charge and were to be discharged along with Exhibits P‑1 and P‑2 were held by the High Court and the trial court to represent a principal liability of Rs 2,000. The Court noted that it would presently set aside further discussion of the subsequent devolution of Kunhi Pakki’s share, which is the subject of the principal dispute, and would address those details later.
The suit presently before the Court was filed for the redemption of Exhibit P‑2 by the first and second respondents. The first respondent had purchased the properties listed in Schedule A in July 1943.
The plaintiff relied on Ex. P-83 and agreed to redeem the mortgaged properties listed in schedules A and B and to deliver possession of schedule B properties to the representative of the Madana family.
Respondent No. 2, who at that time bore the name Elamanthi, served as the representative of the Madana family.
The suit was filed on April 20, 1944, and would be barred under Article 148 of the Indian Limitation Act.
Limitation could be saved only if effect of Exs. P-2 and P-2(a) and the forty‑year possession term granted to the mortgagees from 1862 were considered.
The plaintiffs argued that their claim was timely because Ex. P-2 permitted the mortgagees to remain in possession for forty years from April 26, 1862.
Consequently, the right of redemption first arose on April 27, 1902, and the suit filed in 1944 was within the sixty‑year limitation period prescribed by Article 148.
The defence contended that concerning the share of Kunhammu Hajar, Kunhi Pakki, who inherited that share, was not bound by Ex. P-2(a).
The reason given was that Kunhi Pakki was a minor and neither he nor any guardian had executed Ex. P-2(a) on his behalf.
It was pleaded that Mohammedan law recognized no doctrine of representation, and if the mother had signed Ex. P-2(a), she would be considered a fazuli, an unauthorised person.
Further, it was argued that Kunhi Pakki’s share in Exs. P-2 and P-2(a) could not preserve the limitation period and that the one‑quarter share of Kunhammu Hajar was not redeemable.
The plaintiff was also required to pay for the improvements, and the trial judge determined that a sum of Rs. 4,089‑2‑0 was outstanding and payable.
The trial judge held that the suit was filed within the prescribed period as it related to the one‑quarter share of Kunhammu Hajar owned by C. Mahamood.
The judge also applied the equitable doctrine of election, reasoning that Kunhi Pakki had approved and adopted Exs. P-2 and P-2(a), had taken their benefit, and therefore his successors could not repudiate them.
Accordingly, the trial judge passed a decree, inter alia, for the redemption of C. Mahamood’s share on payment of the redemption price, the improvements, and interest thereon.
Following this judgment, A.S. 138 of 1947 was filed by defendants 3, 5, 8, 9, 49, 59, 52, 67, 68 and 121, and A.S. 88 of 1947 was filed by defendant 58.
The plaintiffs also filed a cross‑objection asserting that the relief sought by the defendants was unwarranted and that the original decree should remain in force.
The High Court modified the decree regarding the amounts due for improvements and, on the principal issue, upheld the trial judge’s conclusions about the limitation period as set out by the trial judge.
It also affirmed the equitable doctrine of election, finding that Kunhi Pakki’s adoption of Ex. P-2 and Ex. P-2(a) bound his successors.
In the present appeal, the parties argued that the High Court’s conclusions concerning the limitation period and the doctrine of election were erroneous.
In this appeal, the petitioners contended that the High Court had erred in two respects. First, they argued that the High Court’s conclusions on the limitation period and the application of the equitable doctrine of election were incorrect. Second, they maintained that the award of mesne profits from the date specified in the preliminary decree for redemption was mistaken, because the High Court had determined an increased amount for the improvements and held that the full payment of the improvement costs was a prerequisite for claiming redemption. Before addressing these submissions, the Court proceeded to set out further factual background. The appeal was instituted by Beepathumma, who acted as the legal representative of defendant 8, C. Mahamood, son of Abdul Rahimam Haji. Mahamood had died while the appeal was pending in the High Court. The other respondents included the daughter of Mahamood (defendant 9) and his sons (defendants 52, 67 and 68). Additional appellants were Abdulla, son of defendant 49, and Bipathumma, daughter of Mammachumma (defendant 50). Mammachumma was the sister of Kunhi Pakki, who was the son of Kunhama Hajar. These names were relevant because they were linked to the one‑quarter share that, upon partition, passed to Kunhammu Hajar as shown in document Ex P‑6, and this share would appear later in the narrative. It was also important to recall that Warg No. 34 was identified as “Belinja Mainda‑Kinhana.” After the partition, Kunhammu Hajar, on 23 September 1857, executed a usufructuary mortgage in favour of his elder sister Cheriamma concerning his one‑quarter share; this mortgage was recorded in document Ex P‑16. Cheriamma had previously received an eighth‑share (beriz of Rs 28‑7‑4) at the partition, as evidenced by Ex P‑6(c). The mortgage deed expressly provided that Kunhammu Hajar could redeem the property at any time he chose. Subsequently, documents Ex P‑2 and Ex P‑2(a) were created. Cheriamma did not sign Ex P‑2(a) because she had died before its execution. Following Cheriamma’s death, her one‑eighth share and the mortgagee’s rights were divided between her sisters Mammachumma and Aisumma by documents Ex P‑17 and Ex P‑17(a) dated 6 October 1861. Each sister received property valued at a beriz of Rs 28‑7‑4 from the one‑quarter share that Kunhammu Hajar had mortgaged, together with a portion valued at Rs 14‑3‑8 from Cheriamma’s original share. Consequently, Mammachumma and Aisumma each held property with a total beriz of Rs 42‑11‑0, representing a three‑sixteenth share of the entire mortgaged estate. After the death of Kunhammu Hajar, his son Kunhi Pakki disregarded the usufructuary mortgage in favour of Cheriamma. On 10 July 1884, Kunhi Pakki obtained a sale deed (Ex P‑59) from Hammadekunhi, son of Mammachumma. The deed described the property as having a beriz of Rs 28‑7‑4 in Warg No. 34 and a beriz of Rs 14‑3‑8, indicating that although the property was listed in two parcels, Kunhi Pakki had acquired the three‑sixteenth share previously belonging to Cheriamma. No specific boundaries were provided in the deed because it stated that Kunhi Pakki was already in possession of a portion of the properties within the same Warg. Through this transaction, Kunhi Pakki came into ownership of property with a combined beriz of Rs 42‑11‑0, which had formerly been held by Mammachumma. Thereafter, Kunhi Pakki executed a simple mortgage in favour of Laxmana Bhakta on 18 January 1887, as recorded in document Ex P‑60, for the sum of Rs 5,500. The mortgage described the mortgaged property as belonging to Belinja Mainda‑Kinhana (Warg No. 34) and being comprised of two lots, one with a beriz of Rs 28‑7‑4 and the other with a beriz of Rs 14‑3‑8, thereby confirming that Kunhi Pakki was mortgaging the three‑sixteenth share he had obtained through Ex P‑59. The boundaries mentioned in Ex P‑60 were identified as the same as those set out in Ex P‑59. The nature of Kunhi Pakki’s right in this property was characterised as “Avadhi‑Ilidarwar,” meaning a usufructuary mortgage for a fixed term in lieu of interest, as indicated in Ex P‑1 read with Ex P‑2. Subsequently, on 11 February 1892, Kunhi Pakki executed another simple mortgage, documented as Ex P‑61, in favour of Anantha Kini for Rs 2,000. This mortgage described the property as having a beriz of approximately Rs 56 and also included the parcels of Rs 28‑7‑4 and Rs 14‑3‑8, effectively evidencing that Kunhi Pakki was mortgaging the entire seven‑sixteenth share (the original one‑quarter plus the three‑sixteenth). No boundaries were provided in this deed, but it was stated that the mortgaged lands formed part of the same estate.
In January 1887, Kunhi Pakki executed a simple mortgage for the sum of five thousand five hundred rupees. The mortgage described the mortgaged property as belonging to Belinja Mainda Kinhana in Warg No. 34 and stated that the property consisted of two separate lots, one lot bearing a beriz of twenty‑eight rupees seven annas four paise and the other lot bearing a beriz of fourteen rupees three annas eight paise. By referring to the earlier sale deed recorded as Exhibit P‑59, the Court concluded that Kunhi Pakki was mortgaging the three‑sixteenth share that he had previously acquired. This conclusion was reinforced by the fact that the boundaries mentioned in Exhibit P‑60 were described as identical to those set out in Exhibit P‑59. The right created by this mortgage was characterised as “Avadhi‑Ilidarwar,” meaning a usufructuary mortgage for a fixed term in lieu of interest, as shown in Exhibit P‑1 read with Exhibit P‑2. Subsequently, on eleven February 1892, Kunhi Pakki executed another simple mortgage, this time for two thousand rupees, in favour of Anantha Kini. The later mortgage described the property as having a total beriz of roughly fifty‑six rupees, and it also reiterated the two lots of twenty‑eight rupees seven annas four paise and fourteen rupees three annas eight paise. By this description, the Court understood that Kunhi Pakki was mortgaging the entire seven‑sixteenth share, which comprised his one‑quarter share together with the earlier three‑sixteenth share. No new boundaries were provided, but the document stated that the boundaries were the same as those in the January 1887 mortgage. The instrument further recited that no other documents were being handed over at that time, but that the mortgager undertook to deliver them at a later date.
On twenty‑nine September 1902, Kunhi Pakki, together with his wife Beepathumma and his son Kunhammu, executed a usufructuary mortgage for the sum of thirty‑two thousand rupees in favour of Vaikunta Bhakta. This mortgage, recorded in Exhibits P‑62, covered several lots of property, and item 18 specifically referred to land with a beriz of ninety‑eight rupees eleven annas ten paise in Belinjada Maindana Kinyana, Warg No. 34. The description indicated that the mortgage encompassed both the one‑quarter share and the three‑sixteenth share previously associated with Cheriamma. The recital in the deed affirmed that all “Voladocuments” had been handed over, and evidence established that Exhibit P‑2 formed part of those documents. Vaikunta Bhakta later transferred his mortgagee rights under Exhibit P‑62 to Abdul Rahiman and Korgappa by way of Exhibit P‑64 dated ten April 1913; item 18 of that exhibit again described land of Warg No. 34 with a beriz of ninety‑eight rupees eleven annas ten paise and stated that the boundaries were those shown in the Ilidarwar documents (Exhibits P‑1 and P‑2). Further, on twenty‑six August 1924, Kunhi Pakki executed a charge, documented as Exhibit P‑65, on the same properties in favour of the assignees of the earlier mortgage. The charge expressly referred back to the properties that had been usufructuarily mortgaged on twenty‑nine September 1902 under the Ilidarwar arrangement. Later, on twenty‑three January 1930, the heirs of Abdul Rahiman and the heirs of Korgappa executed a partition deed, Exhibit D‑54, through which the Kumbadaje properties that were the subject of the mortgages and the charge were allotted to the heirs of Abdul Rahiman. The partition deed recorded that all relevant documents had been handed over to the heirs of Abdul Rahiman. Subsequently, C. Mahamood, the son of Abdul Rahiman, obtained a release of the shares belonging to his mother, brother and sister on twenty‑three September 1930, as evidenced by Exhibit P‑66.
In the document marked Ex P‑66, the record stated that the lands situated in Kumbadaje village had been acquired by an assignment from Vaikunta Bhakta and were then being held under a usufructuary mortgage that possessed a definite term. The same exhibit also referred to a charge that Kunhi Pakki had created for the sum of rupees 9,500 on 26 August 1924. Further, the exhibit observed that every document relating to the properties in Kumbadaje village had been transferred to C. Mahamood, the son of Abdul Rahiman. The total beriz assessed for the Kumbadaje properties was shown as rupees 198‑8‑0 because this valuation incorporated certain sub‑divisions that were not part of the parcels identified in exhibits P‑64 and P‑65. By reason of these arrangements, the eighth defendant obtained a seven‑sixteenth share of the interest that had previously belonged to Kunhi Pakki.
The Court then turned to three additional documents that had either been executed by Kunhi Pakki or had been executed for his benefit. The most significant of these was exhibit P‑3, dated 4 September 1871, which constituted a mortgage granted by the original mortgagors in favour of Kunhi Pakki. It was recalled that the properties listed in Schedule C had been released when exhibit P‑1, originally without any time limitation, was transformed into a mortgage with a fixed term by means of exhibit P‑2 in 1862. Subsequently, Kunhi Pakki secured a mortgage over the released lands with a term of thirty‑two years of enjoyment, thereby placing the three properties described in Schedules A, B and C – all of which were pleaded in the suit and referred to in exhibit P‑1 – upon an equal footing. The importance of the thirty‑two‑year term lay in the fact that this mortgage was intended to run for the same duration as the other mortgage deed that had been created. The document further affirmed that Kunhi Pakki was already enjoying another property that formed part of a land bearing a beriz of rupees 227‑10‑10 in Warg No. 34, held under a usufructuary mortgage with a time limit by virtue of a registered instrument of 1862 executed by his mother, Aliamma. Certain recitals of that 1862 instrument were reproduced verbatim: “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 x x x x “All this entire property is mortgaged to you with a time‑limit of thirty‑two years from this Prajothpathi year onwards; and the one said Karar document obtained by us and mentioned above is given to you; x x x x x “If the principal amount and interest fall into arrears, that arrears of interest also shall be paid.”
After the stipulated due date, redemption could occur only when the mortgage amount relating to the Avadhi Ilida Arwar, which was a usufructuary mortgage with a time‑limit, had been fully paid, and when the property together with all the documents mentioned therein were redeemed; consequently, the property, the instrument itself, and the other documents to be reclaimed from the said Hammada Kunhi Beary would be recovered by the mortgagors.
The consideration for this mortgage was intended to discharge the debts of Hammada Kunhi and other creditors, amounting in total to Rs 565‑8‑0. The mortgagors also acknowledged receipt of a sum of Rs 234‑8‑0. By executing the instrument, Kunhi Pakki placed all the lands on an equal footing and, in effect, neutralised the impact of the release of certain properties that had been effected by Exhibit P‑2(a). Evidence indicated that Kunhi Pakki had not personally paid the amounts himself, because on 21 September 1872 he executed a simple mortgage in favour of Hammada Kunhi for Rs 800, identified as Exhibit P‑3(a). In that deed he expressly stated that the property was mortgaged without possession and remained in the enjoyment of the original owners.
The final document referred to in the records was Exhibit P‑4, which constituted a usufructuary mortgage executed by the original mortgagors in favour of Hammada Kunhi on 29 May 1877. This later instrument made specific reference to the earlier documents of Kunhi Pakki concerning the previously released lands, and it particularly cited Exhibit P‑2, declaring that the property was now held under a usufructuary mortgage that carried a specified time‑limit.
The mortgagees argued that the one‑fourth share belonging to Kunhi Pakki, on which no time‑limit had been imposed because he was a minor when Exhibits P‑2 and P‑2(a) were created, could not be redeemed by the plaintiff since the suit concerning that share was barred by limitation. To appreciate this contention, the Court outlined a brief history of the law of limitation from 1842 to 1902. In 1842, when Exhibit P‑1 was executed, no statutory limitation period existed for the redemption of a usufructuary mortgage. Such a limitation was first introduced by the 1859 statute, which prescribed a period of sixty years measured from the date of the mortgage. The introduction of this limitation appears to have motivated the execution of Exhibits P‑2 and P‑2(a), as the mortgagees likely feared that the mortgage could be redeemed at any time within the sixty‑year window beginning in 1842. Consequently, the ultimate date for redemption was fixed as 1902. By obtaining a certain term of forty years, the parties effectively shifted the redemption date to 1902, thereby preventing any redemption until that year. The mortgagors also derived a benefit, as they secured the release of some properties and received a cash payment of Rs 100. The sixty‑year limitation period was reiterated in the 1871 Act, although that statute included a provision that if an acknowledgment occurred within the sixty‑year period, the limitation would be measured from the date of such acknowledgment.
Article 148 of the Limitation Act, which is in force today, originated from the Statute of Limitation of 1877 and provides that an acknowledgment restarts the limitation period. The mortgagors argue that they may rely on the present Act together with Exhibits P‑2 and P‑2(a), so that the redemption period ends sixty years after redemption became due under those exhibits, i.e., 1902. The Court recognized that limitation law is procedural and that the provisions in force at the time the suit was filed govern the proceedings. Since the suit was instituted in 1944, the Limitation Act of 1877 applied to determine the period of limitation. The sole issue therefore narrowed to the question of when the mortgage became due for redemption. The mortgagees maintained that the limitation period began from the date of the original mortgage under the 1859 Act. They further argued that the period did not stop concerning the share of Kunhi Pakki because he was not bound by Exhibits P‑2 and P‑2(a). Conversely, the mortgagors claimed that Kunhi Pakki had accepted Exhibits P‑2 and P‑2(a) as his own documents, had derived benefit from them in several ways, and thus was estopped from denying their effect. The mortgagors further argued that, having approved and adopted those documents, the appellants could not repudiate them. Accordingly, they contended that the equitable doctrine of election should be applied to Kunhi Pakki and to the person who derived title from him, identified as Deft 8. Both the High Court and the lower Court accepted this plea of the mortgagors, a decision that the appellants now challenge as erroneous. Counsel for the appellants admitted that the mortgagors had not lost their right to the properties described in Exhibit P‑2 and that Exhibit P‑2 incorporated Exhibit P‑1. Exhibits P‑63 and P‑63(a) were presented to establish the connection, but, given the admission, the Court found it unnecessary to elaborate on them further.
Counsel also conceded that no case could be made under Article 134 of the Indian Limitation Act. He argued that the doctrine of election is merely a form of estoppel and that estoppel cannot be invoked against a statutory limitation bar, referring to section 3 of that Act. The counsel relied on a Madras High Court decision in Sitarama Chetty and Anr. v. Krishnaswami Chetty [(1915) I.L.R. Mad., 38, 374]. In that case, the chief justice quoted Mr. Mitra’s work, observing that an agreement by a party not to rely on the statute does not affect its operation unless the agreement constitutes an acknowledgment of liability that the statute treats as an exception. He further relied on Govardhan Das v. Dau Dayal [(1932) I.L.R. 54 All. 573] for the principle that no one may contract out of a limitation period and that estoppel cannot be pleaded against a statutory bar of limitation. He argued that, unless Exhibits P‑2 and P‑2(a) can be treated as an acknowledgment, limitation cannot be saved with respect to Kunhi Pakki’s share and that the suit must be dismissed under section 3 of the Limitation Act. He also maintained that the equitable doctrine of election did not apply because the documents relied upon addressed the three‑sixteenth share of Cheriamma, which Kunhi Pakki later acquired, and not his original one‑fourth share.
In support of his argument, counsel cited the decision of Dau Dayal [(1932) I.L.R. 54 All. 573] for the proposition that no person can contract himself out of the operation of the statute of limitation, and that estoppel cannot be used against a statutory limitation bar. He noted that several other cases mentioned in the earlier submissions did not bear on the present issue and therefore need not be discussed. Relying on these authorities, counsel argued that unless the documents labelled as Exhibits P‑2 and P‑2(a) can be pleaded as an acknowledgment, the defence of limitation cannot be rescued with respect to the share of Kunhi Pakki and, consequently, the suit must be dismissed pursuant to section 3 of the Limitation Act. He further contended that the equitable doctrine of election was inapplicable because the documents on which reliance was placed referred not to the one‑quarter share owned by Kunhi Pakki but to the three‑sixteenth share belonging to Cheriamma, a portion that Kunhi Pakki later obtained. According to his submission, this conclusion became unavoidable when Exhibits P‑59, P‑60 and P‑61 were read together. He maintained that in those documents Kunhi Pakki clearly linked the three‑sixteenth share with Exhibits P‑2 and P‑2(a) while treating his own one‑quarter share as a separate matter.
The record showed beyond doubt that Kunhi Pakki was not directly bound by Exhibits P‑2 and P‑2(a). Counsel correctly observed that because Kunhi Pakki was a minor at the relevant time and no guardian signed on his behalf, Exhibit P‑2(a) could not be employed to demonstrate either an acknowledgment by him or an extension of the original usufructuary mortgage term. The remaining issue, therefore, was whether, by virtue of the later documents and Kunhi Pakki’s subsequent conduct, it could be said that he had obtained the benefit of Exhibit P‑2(a) and was thereby obligated to accept the entirety of Exhibits P‑2 and P‑2(a). If such binding were established, no question of extending the limitation period or of an acknowledgment would arise, and section 3 of the Limitation Act would not impede the claim because the limitation clock would commence only from the year 1902. This outcome followed from the fact that the mortgagors were unable to redeem the property, including Kunhi Pakki’s share, for a period of forty years beginning in 1862. The court also reaffirmed that the doctrine of election applied in this case is well settled, citing the classic statement from Maitland that a person who accepts a benefit under a deed or will must adopt the whole contents of that instrument and renounce any inconsistent rights. An equivalent principle was quoted from White and Tudor’s Leading Cases in Equity, eighteenth edition, page 444, which described election as the equitable obligation to choose between two inconsistent or alternative rights when there is a clear intention that one should not enjoy both, thus reinforcing the duty of a party who accepts a benefit to accept the entire instrument.
Courts have repeatedly applied the doctrine of election in a variety of cases, and it is unnecessary to list every authority that has considered the principle. Nonetheless, a notable decision of the Madras High Court in the matter of Ramakottayya versus Viraraghavayya is worth mentioning. In that case the learned Chief Justice, Coutts Trotter, after quoting the passage from White and Tudor, observed that the doctrine is often expressed in the maxim that a person cannot both approve and disapprove the same transaction. He further referred to the earlier decision of the Judicial Committee in the case of Rangaswami Gounden versus Nachiappa Gounden [(1918) I.L.R. 42 Mad. 523]. More recently, the Supreme Court itself examined the same doctrine in the case of Bhau Ram versus Baij Nath Singh and others.
The principal issue that then arose was whether, in the language used by Scottish lawyers, the individual known as Kunhi Pakki could be said to have approved the documents labelled Ex‑P‑2 and Ex‑P‑2(a), and consequently whether his successors in title were precluded from repudiating those documents. The record contains several exhibits that illuminate the matter. Exhibits P‑3 and P‑4 clearly demonstrate that Kunhi Pakki regarded himself as bound by Ex‑P‑2(a) and that the mortgagors were bound by Ex‑P‑2. When he accepted the mortgage on the properties that had been released, this act signified his acceptance that the mortgagors were freed from the obligations set out in Ex‑P‑1. Moreover, Exhibit P‑3 shows that he took the mortgage on the released properties for a period of thirty‑two years, thereby aligning the duration of this mortgage with that of the earlier one. The same document described the earlier transaction as an “Avadhi Illida Arwar,” that is, a usufructuary mortgage limited by time, indicating that Kunhi Pakki was aware of the time limits imposed by Ex‑P‑2 and Ex‑P‑2(a). Subsequent documents continue to refer to the Illida Arwar, not only in relation to the three‑sixteenth share held by Cheriamma but also concerning the entire seven‑sixteenth share of Kunhi Pakki. This seven‑sixteenth share comprises his original one‑fourth interest, which he had obtained through his father as shown in Exhibit P‑6, together with an additional three‑sixteenth share acquired later. Because Kunhi Pakki enjoyed the benefits of the mortgage over his one‑fourth share for a certain period of forty years, the Court concluded that he elected to subject his own one‑fourth share to the terms set out in Ex‑P‑2. By accepting the benefit and thereby approving that document, neither Kunhi Pakki nor his successors could contend that the mortgage in Ex‑P‑1 was independent of Ex‑P‑2, nor could they argue that the limitation period expired only after sixty years from 1842. In the Court’s view, the doctrine of election was therefore correctly applied to the one‑fourth share now possessed by the present appellants through defendant eight.
The next question raised by the parties concerned the award of mesne profits. The appellants contended that both the High Court and the Court below should have refrained from granting mesne profits against them until they had paid the full redemption price together with compensation for the improvements made to the property. The trial court had originally determined that an amount of Rs 4,089‑2‑0 was payable to defendant number eight. This finding formed the basis of the subsequent orders on mesne profits.
The High Court increased the amount to Rs. 6,625‑7‑0, which represented a considerable enlargement over the sum that the plaintiffs had originally deposited for redemption, namely Rs. 4,089‑2‑0. Even though the plaintiffs had already placed the full required amount in the court, the Court held that this deposit did not satisfy the condition required for granting redemption. The condition, as set out in Exhibit P‑1 and reproduced in the earlier part of the judgment, stipulated that the sum of 1,250 varahas together with the value of the improvements must be paid in a single lump‑sum payment. The same requirement appeared in later documents that were executed by the parties. The respondents argued that the High Court had awarded interest on the additional compensation for the improvements and therefore it would be fair for the appellants to pay mesne profits for the period during which they possessed the property after the trial judge’s amount had been deposited in court. The Court, however, observed that equity was not the controlling factor because the mortgage agreement itself required redemption to be effected according to its own terms. The mortgagors had undertaken to redeem the property by paying both the principal mortgage amount and the compensation for improvements in one lump‑sum payment. Consequently, they could not complain if the mortgagees were not obliged to surrender possession or to pay mesne profits until the mortgagors had delivered the complete amount. Both parties cited authorities that were not applicable, as the factual situations in those cases differed materially from the present dispute, and no legal principle could be extracted from them for the matter at hand.
The Court noted that for the present case the redemption date had been fixed as 15 April 1946, and the mortgagors had deposited approximately Rs. 17,000 with the court. The appellate decree was issued on 3 November 1955 and possession of the land was handed over in 1957. It was further reported that an amount of Rs. 11,800 per annum had been deposited in the court as mesne profits. The Court held that the mortgagees could not retain ownership of the lands or treat the amount paid as the price of redemption. Even if the mortgagees were not required to deliver possession until the full sum, including compensation for improvements, was received, they were not entitled to use that money. Accordingly, the Court directed that the mortgagees must pay simple interest at the rate of six per cent per annum on the amount they had received from the mortgagors, calculated from the date of withdrawal of that amount until possession was actually delivered to the mortgagors. The additional compensation due to the mortgagees would be set off, and the accounts of the parties would be adjusted accordingly. On these grounds, the appeal was partly allowed. Because the appellants failed on the principal issue, they were ordered to bear the costs of the appeal payable to the respondents. The final order therefore allowed the appeal in part.