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Calcutta High Court
Madho Misser vs Sidh Binaik Upadhya Alias Bena … on 13 June, 1887
Equivalent citations: (1887) ILR 14 Cal 687
Author: T A Norris
Bench: Tottenham, Norris


Tottenham and Norris, JJ.

1. The only point which arises in this second appeal is whether or not Article 132, Schedule II of the Limitation Act, is applicable to the facts of this case.

2. The suit was brought by the plaintiff to recover the sum of Rs. 99 with interest.

3. Both Courts have held that the plaintiff’s claim is barred by limitation, the document upon which be sued being dated the 24th of July 1881, and the suit not being brought until the 3rd of August 1885.

4. The document runs thus: “I, the declarant, Sidh Binaik Upadhya alias Bena Upadhya, inhabitant of Kurnampur, pergunnah Behya, zillah Tirhoot, do execute this deed. Whereas I have borrowed Rs. 99 from Madho Misser, inhabitant of Kurnampur, pergunnah aforesaid, I shall pay interest at the rate of one rupee six annas per cent. per mensem without any objection. I shall pay the entire principal with interest in the month of Baisakh 1289 F.S. without any objection. If I do not pay the money according to the stipulation, then I declare in writing that I shall lose my right to 1 bigha 7 cottas of guzazhta land situated in mouzah Kutba. If I do not pay money according to the promise then the aforesaid Misser shall take possession of the land. Since the Misser shall take possession of the land no interest of the money shall be paid by me, and be shall pay the rent of the landlord out of the profits of the land without any objection.”

5. It was first of all argued before us that this document amounted to a mortgage. We are clearly of opinion that it is not a mortgage within the meaning of the Transfer of Property Act; and indeed this point was not seriously pressed.

6. The learned pleader for the appellant then contended that, if this document does not amount to a mortgage, it is a charge under Section 100 of the Transfer of Property Act. We are of opinion that it is not a charge. When the Legislature speaks of a charge under Section 100 it speaks of something which operates as a charge upon land immediately as it is executed. This document seems to us, not to create a charge at the time of its execution, but to operate only as a charge upon the land in question upon the non-payment of the principal money in 1289. All that it does is to create the possibility of a charge ultimately arising on the land. That is not a charge under Section 100 of the Transfer of Property Act.

7. We think that the case has been rightly decided by the lower appellate Court, and accordingly dismiss the appeal with costs.

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