SHIVAJI SHESHGIR KULKARNI Vs. CHANNAVA KOM BASANGAVDA

JUDGEMENT

(1.) The question in this appeal is whether the plaintiff-respondent No. 1's suit is barred by limitation under Art. 134 of the Second Schedule of the Indian Limitation Act. The trial Court held that it was the lower Appellate Court that it was not. Defendant No. 2 appeals.

(2.) The suit is in respect of Survey No. 124. The original owner, Rudrappa, passed a simple mortgage of it and of another Survey No. 149 and other property in 1876 in favour of defendant No. 1 Robertson. The simple mortgage recited that in default of re-payment within three months, the mortgagee was to be let into possession and to remain in possession until the mortgage amount was fully repaid. It was not so paid within three months, In April 1878, Rudrappa parsed a rajinama and kabuliyat in respect of the land in suit in favour of the plaintiff-respondent's adoptive father, and in July 1678 the mortgagee obtained a decree for possession against the mortgagor Audrappa, and in execution was placed in possession. On May 23, 1879, defendant No. 1 sold the entire mortgaged property to the deceased father of defendant No. 2-appellant and placed him in possession of Survey No. 124 in suit. The other Survey No. 14y is in possession of defendants Nos. 3 and 4 respondents. On January 9, 1924, the plaintiff respondent instituted the present suit for redemption and possession of Survey No. 124 and joined therein as defendant No. 1 the original mortgagee Robertson, defendant No. 2 the son and successor-in-title of the purchaser from defendant No. 11 in 1879, and defendants Nos. 3 and 4 the persons in possession of the other Survey Number. The contesting defendant No. 2 raised various contentions questioning the title of the plaintiff to redeem. As regards the adoption of the plaintiff it was held that the question was res judicata by reason of the omission of defendant No. 2 who did not raise the point in a previous suit. This view has not been question in appeal. The trial Court held on all the points in favour of the plaintiff except on the point of limitation. On that point it held that the suit was barred under Art. 134 of the Indian Limitation Act and dismissed it. In appeal, the learned Assistant Judge was of opinion that it was not so barred and the plaintiff agreed to pay the full mortgage amount if he was placed in possession of Survey No. 124 only. Accordingly the lower Appellate Court reversed the decree of the trial Court and ordered the plaintiff, on payment of Rs. 1,000 to defendant No. 2, to recover possession of Survey No. 124.

(3.) The first and the main question is in regard to limitation. It is argued for the appellant that on the terms of his sale-deed recited in the judgment of the lower Appellate Court, the appellant thought that he was taking the full title free of the mortgage, and he is, therefore, entitled to the benefit of Art. 134, and time ran in his favour from the date of his sale-deed in 1879 when he obtained possession from the mortgagee decree-holder defendant No. 1. It is argued that the omission of the words "in good faith" in the corresponding Art. of the Indian Limitation Act of 1871, even if they are not equivalent to an implicit addition of "in bad faith" in the Art. as it stands at present at least reduces the onus on the transferee from the mortgagee such as the appellant. Reliance was placed for this proposition on the decisions of this Court in Baivakhan Daudkhan V/s. Bhiku Sazba 9 B. 475 and Yesu Ramji V/s. Balkrishna Lakshman 15 B. 583 and of the Madras High Court in Venku Shettithi V/s. Ramachandrayya 92 Ind. Cas. 342 : 49 M.L.J. 634 : 22 L.W. 885 : (1925) M.W.N. 886 : A.I.R. 1926 Mad. 81 and Subhaiya Pandaram V/s. Muhammad Mustapha Maracayar 74 Ind. Cas. 492 : 46 M. 751 : 21 A.L.J. 730 : A.I.R. 1923 P.C. 175 : 45 M.L.J. 588 : 25 Bom. L.R. 1275 : 18 L.W. 903 : (1924) M.W.N. 65 : 28 C.W.N. 493 : Pat. L.R. 104 : 33 M.L.T. 285 : 40 C.L.J. 20 : 50 I.A. 295 (P.C.). It is argued for respondent No. 1 that as on the terms of his previous purchase the appellant took it with clear notice of the mortgage, Art. 134 has no application.