1. This second appeal arises out of a suit instituted on 24-9-1947 by the appellant for the recovery of money alleged to be due under a mortgage deed dated 13-5-1953 executed by one Kannamrnal, the deceased mother of the first defendant and wife of the second defendant in favour of the deceased father of the plaintiff. The only Question with which we are now concerned is whether the suit brought more than 12 years after the date of the mortgage is saved from the bar of limitation under Section 20(2) of the Limitation Act by reason of the fact that the mortgagee was put in possession of the mortgaged property. The property mortgaged is a house. There is a stipulation in the mortgage deed that the rent from the house should be adjusted towards the interest due and payable on the mortgage. Both the Courts have held that the suit is barred by limitation, because Section 20(2) would not be of any assistance to the plaintiff.
That sub-section runs thus:
"Where mortgaged land is in the possession of the mortgagee the receipt of the rent or produce of such land shall be deemed a payment for the purpose of Sub-section (1)."
And under Sub-section (1), the effect of payment of interest as such would give rise to a fresh period of limitation from the. time of such payment. The ground on which the courts below have held that the plaintiff will not be entitled to the benefit of Section 20(2), Limitation Act, is that the property mortgaged is not land but is a house. The question is whether the expression "mortgaged land" in that provision would include a "house".
2. No direct authority of this court or of any other court has been brought to our notice in which this question is discussed. Learned counsel for the plaintiff appellant cited to us the decision in -- 'Manakchand Bharmappa v. Rachappa Virsangappa', (A) in which Section 20(3) was applied, and that case related to the mortgage of a shop. But it is evident from the Judgment in that case that the point which now falls for determination was not before the learned Judges. They appear to have assumed that shop would be comprised in the expression "land". This decision cannot obviously serve as a precedent.
3. Mr. D. A. Krishna Variar, learned counsel for the appellant, invited our attention to certain decisions of the Punjab Chief Court and the Lahore High Court, In which the learned Judges construed the term "land" occurring in Article 125, Limitation Act, as including a "house", or at any rate, the site on which a house was situated, viz., -- 'Amir Begum v. Mt. Hussain Bibi', AIR 1922 Lah 98 (B); -- 'Ralyam Ram v. Sher Singh', 5 Ind Cas 842 (1) (Punj) (C); -- 'Soman Singh v. Uttamchand', AIR 1920 Lah 42-1 (D). There is, however, one decision of the same Chief Court taking a contrary view in -- 'Devraj v. Shivram', AIR 1914 Lah 408 (E). We do not think it proper to take into consideration any of these decisions which were concerned with a construction of Article 125. It is true that the word "land" occurs in that article. It also occurs in Article 130. Other Articles however refer to "immoveable property" viz., Articles 39, 109, 111, 132, 134, etc. We do not think it safe to draw any analogy between these articles and the provision contained in Section 20(2) in the main body of the Act as regards the interpretation of the word "land" as different considerations might be applicable according to the context of the several provisions.
4. Mr. M. Natesan, counsel for the respondents, relied upon the history of this provision, that is, of Section 20(2), as throwing light on the proper interpretation of the word "land". We agree with him that it does. In the Limitation Act of 1859, there was no provision corresponding to Section 20 of the present Act of 1908. A part payment of principal or payment of interest did not then have the effect of enlarging the period of limitation. In Act IX of 1871, the corresponding provision was Section 21. That section, however, did not contain any provision such as is contained in Section 20(2). It was in the subsequent Act of 1877 that for the first time a provision corresponding to Section 20(2) of the present Act was Inserted, but with a difference. The provision in that Act ran thus:
"Where mortgaged land is in the possession of the mortgagee, the receipt of the produce of such land shall be deemed to be a payment for the purpose of this section."
Obviously this provision contemplated only land, that is to say, land which was capable of cultivation and yielding "produce".
In -- 'Ummer Kutti v. Abdul Kadir', 2 Mad 165 (F), the question arose whether, when agricultural land was mortgaged with possession, and the mortgagor took a lease of the land back from the mortgagee, and paid rent under the lease, the mortgagee would be entitled to the benefit of the provision extending the period of limitation by reason of the receipt of rent. It was held by this Court that as the law stood, the receipt of rent would not fall within this provision.
The learned Judges observed:
"It is pleaded the suit is barred by limitation, to which the plaintiff replies that the receipt of rent was in fact a payment of interest, and that from the date of the payment of rent a new period of limitation is given for the recovery of the debt. Under the present law, this may be so, if it be held that payment of rent by the mortgagor is such a receipt of produce in virtue of usufructuary mortgage as is to be deemed equivalent to a payment of interest. But this provision is not to be found in Act 9 of 1871, and although, if the payment of rent had as part of the original agreement or otherwise been agreed on as a provision for interest in the debt, we might have held it fell within the narrower terms of Act 9 of 1871, yet, in the circumstances of the present case, it is impossible, in our judgment, to hold that the payment of rent under an agreement entirely independent of the original mortgage, can be regarded as a payment of interest as such."
5. It was evidently to remedy this anomalous position that in the present Act, Section 20(2), receipt of rent was also included as amounting to a payment for the purpose of Section 20(1). Vide Whitley Stokes Anglo Indian Code Vol. II, page 950. It appears to us, therefore, that the word "rent" in Section 20(2) must be construed as 'ejusdem generis' with "produce" and from such a reading it would follow that "land" in that sub-section could only refer to cultivable land and would not include either a house or even the site on which a house might have been built. It is not for us to speculate as to why the mortgagee is not given the benefit of the extended period of limitation when he is put in possession of a house and not of land. We have only to construe the language of the provision as it is.
6. This construction which we have now adopt-ed is also the construction which would follow from attaching a literal meaning to the word "land" which in its ordinary connotation does not comprise a building.
7. We therefore agree with the courts below and dismiss this second appeal with costs.