BAI REVA Vs. VALIMAHOMED MIYAMAHOMED

JUDGEMENT

(1.) This is a Letters Patent Appeal from the judgment of the Chief Justice in Second Appeal No. 102 of 1920. The suit was Original Suit No. 43 of 1915, and was filed by the plaintiffs who are trustees of a wakf, and they sue to recover possession of three lots, which had been alienated by former trustees, in breach of trust and in excess of their authority as trustees, to the defendant or defendant's predecessor-in-title. Lots Nos. 1 and 2 were sold by these former trustees on the 9 May 1903. Lot No. 3 had been mortgaged by them on the 9 September 1901. The District Judge in First Appeal dismissed the suit as regards lots Nos. 1 and 2 as time-barred under Art. 134 of the Indian Limitation Act. But as to lot No. 3 the learned District Judge held that time was saved by time occupied in Suit No. 3 of 1910 which had been filed by the plaintiffs to secure a declaration that the property in suit was wakf property. He accordingly set aside the mortgage and decreed possession to the plaintiffs subject to their paying compensation of Rs. 99 to the defendant.

(2.) In Second Appeal No. 102 of 1920, the learned Chief Justice held that as regards lots Nos. 1 and 2 time was also saved because the period occupied in prosecuting Suit No. 3 of 1910 would be taken into account. He, therefore, held that the plaintiffs were entitled to a declaration that the sale of these two lots on the 9 May 1903 was invalid. But as regards the prayer for possession, the defendants pleaded mortgages, one of the 5 of September 1891, and the other in 1898, under which they were in possession at the time of the sale. As to these, the learned Chief Justice held that those mortgages were extinguished by merger, and accordingly decreed the plaintiff's suit. As to lot No. 3, the learned Chief Justice erroneously referred to the decree passed by the District Judge as a decree for redemption on payment of the sum of Rs. 99, and he accordingly varied the decree and decreed the plaintiffs claim for possession without payment of this sum which is really compensation but by mistake referred to as redemption money.

(3.) In this Letters Patent Appeal filed by the defendant, it is admitted that the defendant's title as regards lots Nos. 1 and 2 under the sale of the 9 May 1903 cannot be sustained; but Mr. Patwardhan urges that the mortgages of 1891 and 1898 were not extinguished by merger. The law on the subject is enacted in Section 101 of the Transfer of Property Act under which on the acquisition of superior right the inferior right is extinguished unless the owner declares by express words or necessary implication that it shall continue to subsist or such continuance would be for his benefit.