Kerala High Court
Pathumma vs Mohammedkutty on 26 August, 2025
RP 1137/2022 in AS 132/2003
1
2025:KER:65149
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 26TH DAY OF AUGUST 2025 / 4TH BHADRA, 1947
RP NO. 1137 OF 2022
AS NO.132 OF 2003 OF HIGH COURT OF KERALA
REVIEW PETITIONERS/APPELLANTS 5 TO 14 IN AS
1 PATHUMMA, W/O MOORIKUHARMMANAKATH SYED,
RAYIRIMANGALAM AMSOM DESOM, NADAKKAVU POST,
THANOOR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-
676302
2 KHADEEJA, NEDUMPULLY HOUSE, K.PURAM POST,
MOOLACKAL, MALAPPURAM DISTRICT, PIN 676307
3 SUHARA, W/O HAMSAKUTTY, MOORIKUHARMMANAKATH,
RAYIRIMANGALAM AMSOM DESOM, NADAKAVU POST,
THANOOR, MALAPPURAM DISTRICT, PIN 676302
4 HAREEFA, W/O KARIM, MOORIKUHARMMANAKATH,
RAYIRAMANGALAM AMSOM DESOM, NADAKAVU POST,
THANOOR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN -
676302
5 NOUSHAD, S/O MOIDEENKUTTY, MOORIKUHARMMANAKATH,
RAYIRAMANGALAM AMSOM DESOM, NADAKAVU POST,
THANOOR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN
676302
6 SADDIQUE, S/O MOIDEENKUTTY, MOORIKUHARMMANAKATH,
RAYIRAMANGALAM AMSOM DESOM, NADAKAVU POST,
THANOOR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN -
676302
7 ASKAR, S/O MOIDEENKUTTY, MOORIKUHARMMANAKATH,
RAYIRAMANGALAM AMSOM DESOM, NADAKAVU POST,
THANOOR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN -
RP 1137/2022 in AS 132/2003
2
2025:KER:65149
676302
8 RAHEENA, W/O MUHAMED SHEREEF, MOORIKUHARMMANAKATH,
RAYIRAMANGALAM AMSOM DESOM, NADAKAVU POST,
THANOOR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN -
676302
9 HASEENA, W/O MUHAMED SHEREEF, MOORIKUHARMMANAKATH,
RAYIRAMANGALAM AMSOM DESOM, NADAKAVU POST,
THANOOR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN -
676302
10 NISSAR, S/O.MOIDEENKUTTY, MOORIKUHARMMANAKATH,
RAYIRAMANGALAM AMSOM DESOM, NADAKAVU POST,
THANOOR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN -
676302
BY ADVS.
SMT.REHANA SHUKKUR
SRI.S.V.BALAKRISHNA IYER (SR.)
RESPONDENTS/RESPONDENTS 1, 3 TO 11, LRs OF APPELLANT NO.3-
RESPONDENTS 11 AND 12 AND LRs OF APPELLANT NO.2 IN AS-
RESPONDENTS 13 TO 19
1 MOHAMMEDKUTTY
S/O. MOORIKUHARAMANKATH PATHUMMA UMMA,
RAYIRIMANGALAM AMSOM DESOM, TIRUR TALUK,
MALAPPURAM DISTRICT - 676 302.
2 MARIYAMMA UMMA,
W/O. MUHAMMEDKUTTY, RAYIRAMANGALAM AMSOM DESOM,
TIRUR TALUK, MALAPPURAM DISTRICT - 676 302.
3 ALAVIKUTTY, S/O. KUTTY HASSAN, AGED 57, THURAKAL
HOUSE, OMACHAPUZHA POST, MALAPPURAM DISTRICT - 671
320.
4 AYISHA, D/O. KUTTY HASSAN, AGED 53, THURAKKAL
HOUSE, OMACHAPUZHA POST, MALAPPURAM DISTRICT - 671
320.
5 FATHIMA, D/O. KUTTY HASSAN, AGED 51, THURAKKAL
HOUSE, OMACHAPUZHA POST, MALAPPURAM DISTRICT - 671
320.
RP 1137/2022 in AS 132/2003
3
2025:KER:65149
6 ABU, S/O. KUTTY HASSAN, AGED 49, THURAKKAL HOUSE,
OMACHAPUZHA POST, MALAPPURAM DISTRICT - 671 320.
7 MUHAMMED KUTTY @ CHERIYA BAVA, S/O. KUTTY HASSAN,
AGED 57, THURAKKAL HOUSE, OMACHAPUZHA POST,
MALAPPURAM DISTRICT - 671 320.
8 KHADEEJA, W/O. SAIDALI (LATE), AGED 57,
NJARAKKADAVATH HOUSE, OMACHAPPUZHA, THEYYALAM VIA,
PIN - 676 320.
9 SAHEER, AGED 37, S/O. SAIDALI (LATE),
NJARAKKADAVATH HOUSE, OMACHAPPUZHA, THEYYALAM
(VIA), PIN - 676 320.
0 NAJIYA, AGED 33, D/O. SAIDALI (LATE),
NJARAKKADAVATH HOUSE, OMACHAPPUZHA, THEYYALAM
(VIA), PIN - 676 320.
11 SAFIYA M.K. W/O. SAIDALAVI, MOORIKUHARMMANAKATH,
RAYIRIMANGALAM AMSOM DESOM, NADAKAVU POST,
THANOOR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN -
676 302.
12 RAFSAN, SO. SAIDALAVI, MOORIKUHARMMANAKATH,
RAYIRIMANGALAM AMSOM DESOM, NADAKAVU POST,
THANOOR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN -
676 302.
13 KUNJALAN ALAMBATTIL,
S/O. HAMSA, KAVATHIKULAM, KOTTAKKAL P.O.,
MALAPPURAM DISTRICT, PIN - 676 503.
14 SURA ALAMBATTIL, D/O. HAMSA, KAVATHIKULAM,
KOTTAKKAL P.O., MALAPPURAM DISTRICT, PIN - 676
503.
15 SARAFUDDIN ALAMBATTIL,
S/O. HAMSA, KAVATHIKULAM, KOTTAKKAL P.O.,
MALAPPURAM DISTRICT, PIN - 676 503.
16 MYMOONA ALAMBATTIL, D/O. HAMSA, KAVATHIKULAM,
RP 1137/2022 in AS 132/2003
4
2025:KER:65149
KOTTAKKAL P.O., MALAPPURAM DISTRICT, PIN - 676
503.
17 SIDDIQUE ALAMBATTIL,
S/O. HAMSA, KAVATHIKULAM, KOTTAKKAL P.O.,
MALAPPURAM DISTRICT, PIN - 676 503.
18 JAMEELA ALAMBATTIL, D/O. HAMSA, KAVATHIKULAM,
KOTTAKKAL P.O., MALAPPURAM DISTRICT, PIN - 676
503.
19 FASEELA ALAMBATTIL,
D/O. HAMSA, KAVATHIKULAM, KOTTAKKAL P.O.,
MALAPPURAM DISTRICT, PIN - 676 503.
BY ADVS.
SRI.T.KRISHNANUNNI (Sr)
SMT.MEENA.A.
SRI.VINOD RAVINDRANATH
SRI.K.C.KIRAN
SMT.M.R.MINI
SRI.M.DEVESH
SHRI.ANISH ANTONY ANATHAZHATH
SMT.NIVEDHITHA PREM.V
SHRI.THAREEQ ANVER
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
18.8.2025, THE COURT ON 26.08.2025 DELIVERED THE FOLLOWING:
RP 1137/2022 in AS 132/2003
1
2025:KER:65149
ORDER
Dated : 26th August, 2025
The review petitioners are appellants 5 to 14 in A.S. No. 132 of 2003, on the
file of this court. They are the legal heirs of the 2nd plaintiff in OS No. 79 of 1989,
on the file of the Subordinate Judge's court, Tirur, who was the 1st appellant who
died during the pendency of the appeal. The above suit was filed for partition of the
suit property, having an extent of 66.5 cents. The respondents 1 to 10 in the review
petition are defendants 2 and 4 and persons claiming under the 3rd defendant.
Respondents 11 and 12 are the legal representatives of deceased appellant no. 3.
Respondent Nos. 13 to 19 are the legal representatives of the deceased 2nd
appellant, the 3rd plaintiff in the suit.
2. The plaint schedule property originally belonged to the father of the
plaintiff and the 1st defendant. After the death of the father, the property was held
by the plaintiff, his brother Bhavachi and mother Pathoma Umma, by virtue of the
release deeds executed by the other siblings including the first defendant.
Subsequently, mother Pathoma Umma, as per Ext.A3 released her right in the
scheduled property in favour of the plaintiff and his brother Bhavachi. Accordingly,
the plaintiff and his brother Bhavachi became absolute owners of the property.
Thereafter, Bhavachi died without any issues and the right of Bhavachi over the
scheduled property devolved upon the plaintiff and his sister, the first defendant, in
2025:KER:65149
the proportion 2:1, as the mother and all other siblings have died in the meanwhile.
Therefore, the share of the plaintiff and the first defendant over the entire plaint
scheduled property was 5/6 and 1/6 respectively. In the year 1937, the plaintiff, his
deceased brothers Bhavachi and Chekkutty, together with the deceased mother
executed Exhibit B1 mortgage with respect to the scheduled property in favour of
the 1st defendant. According to the plaintiff, though Exhibit B1 mortgage deed was
executed, it was never intended to be acted upon and such a document was
executed only to save the property from being proceeded against, in execution of a
decree obtained by a third party. The plaintiff also contended that, in spite of
Exhibit B1 mortgage, possession of the scheduled property was not handed over to
the first defendant. When the plaintiff's request for partitioning the scheduled
property was rejected by the first defendant, the present suit was filed.
3. The trial court found that Exhibit B1 is a valid mortgage. Ext.B1 is
dated 21.06.1937. The period prescribed in Exhibit B1 mortgage deed was 2 years.
The plaintiffs filed the suit for partition only on 25.08.1989. The trial court found
that since the period of the mortgage as stipulated in Exhibit B1 is 2 years, the suit
ought to have been filed within a period of 30 years from 21.06.1939, that is, on or
before 21.06.1969. Since the suit was filed only on 25.08.1989, the trial court held
that the suit is hopelessly barred by limitation and accordingly, dismissed the suit,
as per judgment dated 26.6.1992. Aggrieved by the above judgment and decree of
the trial court, the plaintiff preferred A.S. No. 168 of 1993 before this Court.
2025:KER:65149
4. In appeal, the plaintiffs have taken two additional contentions. One of the
contentions is that, on the death of Bavachi, the 1 st defendant obtained 1/6 share in the
right of equity of redemption and thereby there was merger of her mortgage right with 1/6
right of equity of redemption and that, therefore the mortgage is not subsisting. The other
contention taken is that Exhibit B1 is an anomalous mortgage, though it is titled as an
usufructory mortgage. As per judgment dated 19.10.2001, this court found that Ext.B1 is
an anomalous mortgage. Regarding the contention of merger of the right of the first
defendant with her right in the equity of redemption, this Court found that there was no
evidence regarding the date of death of Bavachi, to ascertain whether she died before
21.6.1969, the date of expiry of 30 years. Therefore, the matter was remanded for fresh
consideration, after giving opportunity to both sides to adduce evidence especially with
regard to the fact whether Bavachi died before 21.6.1969 or not.
5. After the remand, the plaint was amended incorporating a prayer that
there was merger of the right in the equity of redemption with the mortgage right of
the 1st defendant. The defendants filed additional written statement contending that
the suit is barred by limitation and also that, without a prayer for redemption, the
suit for partition alone is unsustainable. After the remand, one more witness was
examined as PW2. It was contended by the defendants that Bavachi died before the
expiry of 30 years provided for the redemption of the mortgage on 21.6.1969 and
as such, her death has no relevance in the facts of this case.
6. The trial court found that the plaintiffs failed to prove that Bavachi
died before 1969. Further, the trial court found that the prayer for redemption was
2025:KER:65149
barred by limitation and again the suit was dismissed, as per judgment dated
6.9.2002. Aggrieved by the above judgment and decree, the plaintiffs preferred
A.S. 132 of 2003. A learned single judge of this court, as per judgment dated
21.06.2022, dismissed the appeal, holding that it is not at all necessary to go into
the question of the date of death of Bavachi, as to whether it is prior to 1969 or not,
as in either case, the mortgage of 1937 was barred by limitation before the suit was
filed in 1989. Therefore, by applying Section 27 of the Limitation Act, 1963, the
learned single judge dismissed the appeal. Alleging that there are apparent errors in
the above judgment dismissing the appeal, the present Review Petition was filed.
7. Now the point that arises for consideration is the following:
Whether the judgment dated 21.06.2022 passed by the learned single Judge
is liable to be reviewed in the light of the grounds raised in the review
petition ?
8. Heard Sri S.V. Balakrishna Iyer, the learned Senior Counsel
appearing for the review petitioners and Sri. T. Krishnanunni, the learned Senior
Counsel appearing for the respondents.
9. The point :- One of the arguments advanced by the learned Senior
counsel for the review petitioners is that Exhibit B1 is an anomalous mortgage and
as such, there is no period of limitation for redeeming the plaint schedule property.
The learned Senior Counsel would argue that Section 98 of the Transfer of Property
2025:KER:65149
Act has an overriding effect over Section 67(a) of the said Act. Another contention
raised by the learned Senior Counsel is that, on the death of Bavachi, there was
merger of the share in the equity of redemption of 1st defendant with her mortgage
right and hence the suit is not barred by limitation. Therefore, it was argued that the
learned Single Judge was not correct in sustaining the judgment of the trial court
that the suit is barred by limitation.
10. On the other hand, the learned Senior Counsel, appearing for the
respondents, would argue that Article 61(a) of the Limitation Act applies to all
mortgages including Exhibit B1 mortgage, especially when its period was
stipulated as 2 years and the right of redemption and recovery of money thereon.
Therefore, it was argued that the trial court was justified in dismissing the suit and
the learned Single Judge was justified in dismissing the appeal. Therefore,
according to him, there is no merit in this review petition.
11. Section 67(a) of the Transfer of Property Act states that, nothing in
section 67 shall be deemed-
"(a) to authorise any mortgagee other than a mortgagee by
conditional sale or a mortgagee under an anomalous mortgage by the
terms of which he is entitled to foreclose, to institute a suit for foreclosure,
or an usufructuary mortgagee as such or a mortgagee by conditional sale
as such to institute a suit for sale."
12. Section 98 of the Transfer of Property Act dealing with rights and
liabilities of parties to anomalous mortgages reads as follows :-
2025:KER:65149
Rights and liabilities of parties to anomalous mortgages.--
In the case of an anomalous mortgage the rights and liabilities of the
parties shall be determined by their contract as evidenced in the
mortgage-deed, and, so far as such contract does not extend, by local
usage.
13. In Ext.B1, no express provision was made for foreclosure. At the
same time, the mortgagee was permitted to institute a suit for sale of the mortgaged
property for realising the mortgage money. Personal liability is also there in
Ext.B1. It was in the above context, the learned counsel for the appellant claims
that Ext.B1 is an anomalous mortgage. The fact that Exhibit B1 is an anomalous
mortgage is not disputed at the time of arguments.
14. The learned counsel for the review petitioner has relied upon the
decisions of the Hon'ble Supreme Court in Ganga Dhar v. Shankar Lal and
others, 1958 KHC 481, Harbans v. Om Prakash and Others, 2006 KHC 13 and
Panchanan Sharma v. Basudeo Prasad Jaganani and others, 1995 KHC 621 in
support of his argument. In the decision in Ganga Dhar (supra), relied upon by
the learned Senior Counsel for the appellants, the period of the mortgage was 85
years and there was a clause in the mortgage deed that the mortgagor must redeem
the mortgage within a period of 6 months after the mortgage period and thereafter
he could not redeem the mortgage. The Apex Court held that such a condition to
the effect that unless the mortgagor redeems the mortgage within a period of 6
months from the date of expiry of the period of mortgage, is a clog on redemption
2025:KER:65149
and that such a condition is not legally sustainable. The above decision has no
application in the facts of this case.
15. In the decision in Panchanan Sharma (Supra), the Apex Court held
that if the deed gives time for redemption or adjustment of the rent or profits and
liabilities in terms of the contract read with the relevant provisions of the Act stood
discharged, the limitation for redemption would run from the date fixed in the
mortgage deed. The court further states that, otherwise there is no limitation for
redemption of usufructuary mortgage. The usufructuary mortgagor does not lose
his title to the property or right to redemption by lapse of time. In Harbans (supra)
also the court held that when there is no stipulation regarding the period of
limitation, it can be redeemed at any time. Relying upon the above decisions, the
learned Senior counsel would argue that since in the instant case also no period is
prescribed, the suit is not barred by limitation.
16. As per Article 61(a) of the Limitation Act, 1963, the period of
limitation for redemption is 30 years when the right to redeem or to recover
possession accrues. As per the terms of Ext.B1, the mortgagor can pay and the
mortgagee can claim mortgage money only after a period of two years. In other
words, as per Ext.B1, right to claim redemption as well as claim mortgage money
accrued anytime after 2 years. Going by the decisions relied upon by the learned
counsel for the review petitioners in Harbans (supra) and in Panchanan Sharma
(supra) also, the period of limitation starts from the date of expiry of the period
2025:KER:65149
specified therein. Hence, those decisions will not in any way substantiate the case
of the review petitioners.
17. In the decision in Muhammad Sher Khan v. Raja Seth Swami
Dayal, AIR 1922 PC 17 relied upon by the learned Senior Counsel for the
respondents, the mortgage dated 9.6.1908 was for a period of 5 years. As per the
stipulations in the mortgage deed, at the end of the 5 years provided therein, the
mortgagor shall pay the entire principal, interest and compound interest and redeem
the mortgaged property. There is a further clause in the mortgage deed that, in case
the mortgagor fails to redeem the mortgaged property on the expiry of 5 years, the
mortgagee is to be put in possession of the mortgaged property for a period of 12
years and the mortgagor will not have the right of redemption during the above 12
years. The mortgagor failed to comply with the terms of the mortgage deed within
the stipulated period of 5 years. The mortgagee instituted suit No.234 of 1913 for
recovery of possession of the mortgaged property and possession was also obtained
by him on 14.2.1915. On 08.06.1915, the mortgagor instituted a suit for
redemption. The said suit was dismissed on the ground that the suit was premature
and the said decision was upheld by the appellate court also.
18. The special leave petition filed by the mortgagor was allowed by the
Privy Council. While allowing the appeal, the Privy Council held in paragraph 17
that:
"..... An anomalous mortgage enabling a mortgagee after a lapse of time
2025:KER:65149
and in the absence of redemption to enter and take the rents in
satisfaction of the interest would be perfectly valid if it did not also
hinder an existing right to redeem. But is this that the present mortgage
undoubtedly purports to effect ? It is expressly stated to be for five years,
and after that period the principal money became payable. This, under
Section 60 of the Transfer of Property Act, is the event on which the
mortgagor had a right on payment of the mortgage-money to redeem."
19. It was further held by the Privy Council that the rights and liabilities
of the litigants must depend on the terms of the instrument as controlled by the
Transfer of Property Act, for, even if it were an anomalous mortgage, its provisions
offend against the statutory right of redemption conferred by Section 60, and the
provisions of the one Section cannot be used to defeat those of another unless it is
impossible to effect reconciliation between them. Accordingly the Privy Council
held that the above suit for redemption is maintainable.
20. In the decision in Singh Ram v. Sheo Ram, AIR 2014 SC 3447 also
the Apex Court held that, right to redeem will continue till the mortgage money is
paid for which there is no time limit, in the following words :-
"We need not multiply reference to other judgments,
Reference to above judgments clearly spell out the reasons for
conflicting view. In cases where distinction in usufructuary
mortgagor's right Under Section 62 of the T.P.Act has been noted,
right o redeem has been held to continue till the mortgage money
is paid for which there is no time limit while in other cases right to
redeem has been held to accrue on the date of mortgage resulting
in extinguishment of right of redemption after 30 years.
2025:KER:65149
We, thus, hold that special right of usufructuary mortgagor
under Section 62 of the T.P.Act to recover possession commences
in the manner specified therein, ie., when mortgage money is paid
out of rents and profits or partly out of rents and profits and partly
by payment or deposit by mortgagor. Until then, limitation does
not start for purposes of Article 61 of the Schedule to the
Limitation Act. A usufructuary mortgagee is not entitled to file a
suit for declaration that he had become an owner merely on the
expiry of 30 years from the date of the mortgage. We answer the
question accordingly."
21. From the recitals in Ext.B1 mortgage it can be seen that Ext.B1 is an
anomalous mortgage with the characteristics of an usufructuary mortgage. It is true
that, when no particular period is provided in the mortgage deed, there is no
limitation for the redemption of an usufructuary mortgage. However, Ext.B1
stipulates a period of two years for redemption, as well as for demanding mortgage
money. Therefore, the period of limitation for redemption of Ext.B1 as provided
under Article 61(a) of the Limitation Act is 30 years and it expired on 21.6.1969. In
the above circumstance, the suit filed in 1989, more than 20 years after the expiry
of the period of limitation for redemption is barred by limitation.
22. The last part of Section 60 of the Transfer of Property Act relating to
redemption of portion of mortgaged property states as follows :-
"Redemption of portion of mortgaged property.--Nothing in this
section shall entitle a person interested in a share only of the
mortgaged property to redeem his own share only, on payment of a
proportionate part of the amount remaining due on the mortgage,
2025:KER:65149
except only where a mortgagee, or, if there are more mortgagees than
one, all such mortgagees, has or have acquired, in whole or in part,
the share of a mortgagor. "
23. Even if it is assumed that Bavachi died before the expiry of the period
of limitation on 21.6.1969, the same will only enable the plaintiff to redeem his
share alone (5/6) from the scheduled property. Merely for the reason that the
mortgage got disintegrated, the same will not give rise to a fresh period of
limitation or extension of the period of limitation fixed under section 60(a) of the
Limitation Act. At the same time, as held by the trial court, in this case there is no
evidence to prove the date of death of Bavachi. Though after the remand PW2 was
examined, he has no direct knowledge in that respect. In either case, the right of
redemption expired on 21.6.1969 and as such, the present suit filed on 25.8.1989 is
barred by limitation. In the above circumstance, the learned Single Judge was
perfectly justified in dismissing the appeal, holding that in this case the date of
death of Bavachi has no relevance. Therefore, I find no grounds to review the
judgment of the learned Single Judge dated 21.6.2022, and as such this Review
Petition is liable to be dismissed. The point is answered accordingly.
In the result, the Review Petition stands dismissed.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/19.8.
