BAIKUNTHANATH ROY Vs. AHMEDULLA

JUDGEMENT

(1.) This appeal is against the decree of the Subordinate Judge of Sylhet arising out of a redemption suit. The relevant facts are that a kot-kabala or mortgage by conditional sale was executed in 1889 by Brojo Nath Dey and others in favour of Moniram Das and others. The plaintiff is the purchaser of a two-thirds interest in the equity of redemption from the heirs of the mortgagors. The due date under the mortgage was the 3 September 1891. In 1892 the mortgagees brought a suit for foreclosure and obtained a decree in which it was directed that if the mortgage debt was not paid within six months from the date of the decree the mortgagor's right to redeem would be absolutely Foreclosed and the mortgagees would acquire an absolute interest in the property and get khas possession of the same. It appears that this decree was not followed by a final decree but the mortgagees somehow or other obtained possession of the mortgaged property. They sold an absolute interest in that property to the respondent's predecessors in 1910 who conveyed it again to the respondents in 1915. The present suit was brought in 1925 by the plaintiff for redeeming the mortgage of 1889. The main defence in the suit was one of limitation and both the Courts have held that the suit is barred by Art. 134, Limitation Act. There was another objection raised on the ground of res judicata on which the Court below were not in agreement, the lower appellate Court holding that the plaintiffs suit was also barred by the principle of res judicata.

(2.) We have been first addressed; to the question of limitation. It is argued that Art. 134 does not apply to the facts of this case and this argument is based on the finding by the learned Subordinate Judge in the lower appellate Court that the fact that two deeds were executed-- one for the property in suit and another for other properties in which the vendors had an undisputed title showed that the vendee had notice." It is interpreted as meaning that the vendees had notice of the mortgage and therefore on the law to which reference is presently to be made the defendants cannot take shelter under Art. 134. It is difficult to interpret the words in the judgment of the Subordinate Judge as meaning that the defendant's predecessor who purchased the property, from the mortgagee had notice that he was purchasing the mortgagee's interest only though he purchased an absolute interest in it. What the learned Judge probably meant to say is that it might be that the defendants had notice of the circumstances that there was a mortgage in favour of the vendors and that he had also notice of the fact that the mortgagees had obtained a foreclosure decree about 20 years ago and were in possession since then, though the defendants in their written statement denied that they were aware of the foreclosure decree. If the defendants or their vendor (the purchaser from the mortgagees) had notice of all these facts, notice could not have been conveyed to them of the existence of the mortgage, but it would create just a contrary impression that the mortgage had extinguished and merged in the foreclosure decree of 1892 and that the mortgagee's were in possession of the mortgaged property apparently by virtue of the decree. The notice of these facts accordingly will not charge the defendants with knowledge of the fact of the existence of the mortgage and it cannot be said that he was a purchaser of the mortgagee's interest though the document of transfer professed to transfer an absolute title. But as the finding of the learned Subordinate Judge is not very clear on the point, I ought to briefly refer to the question of law which has been elaborately argued before us.

(3.) Art. 134, Limitation Act of 1871, was in these words: To recover possession of immovable property conveyed in trust or mortgage and afterwards purchased from the trustee or mortgagee in good faith for value.