BAGAS UMARJI MIYAJI Vs. NATHABHAI UTAMRAM

JUDGEMENT

(1.) The main facts of the case are that the plaintiff seeks to redeem a mortgage effected prior to 1854. The representatives-in-title of the mortgagee, claiming to be absolutely entitled, mortgaged the land with possession to the fifth defendant s predecessor-in-title, Achratlal Govandas, in 1894. This suit was filed more than twelve years later and the fifth defendant claims as against the plaintiff the interest of a mortgagee by virtue of his adverse possession under Article 134 of the Limitation Act. The lower appellate Court has upheld this contention, which is supported by the authority of three judgments of this Court: Yesu Ramji Kalnath v. Balkrishna Lakshman (1891) I.L.R. 15 Bom. 583; Maluji v. Fakirchand (1896) I.L.R. 22 Bom. 225; and Ramchandra v. Sheikh Mohidin (1899) I.L.R. 23 Bom. 614, in all of which a mortgagee from one who professed to hold absolutely was held to be a purchaser for valuable consideration within the meaning of the Article. It is contended for the respondents upon cross-objections that this interpretation of Article 134 is inconsistent with the judgment of the Judicial Committee in Abhiram Goswami v. Shyama Charan Nandi (1909) L.R. 36 I.A. 148; 11 Bom. L. R. 1234. In that case their Lordships were considering the applicability of the Article to a person claiming a title by adverse possession under a permanent lease. The distinction between a leasehold and an absolute interest was pointed out and the conclusion arrived at was that their Lordships were unable to give to the Limitation Act the wider interpretation adopted by the High Court at Calcutta and to treat the lessee as a purchaser under Article 134 of the Act of 1877. The purchaser, their Lordships said, must be the purchaser of an absolute title.

(2.) The question is whether this expression of opinion should be treated as overruling the Bombay decisions on titles based upon adverse possession as mortgagees.

(3.) First, it is necessary to bear in mind the observations of Lord Halsbury in Quinn v. Leathern [1901] A.C. 495, 306 that every judgment must be read as applicable to the particular facts proved and assumed to be proved since the generality of the expressions that may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found.