HANAMGOWDA SHIDGOWDA PATIL Vs. IRGOWDA SHIVGOWDA PATIL

JUDGEMENT

(1.) The facts necessary to understand the points arising in this appeal may be briefly stated. One Shidgowda died in 1894-95 leaving a widow Nilava On May 22, 1900, she mortgaged the two raytava lands which are now in suit with possession to one Shankar Vishnu Gadgil for Rs. 1,200. The consideration was made up of certain debts of her husband to be satisfied and Rs. 528-5-0 taken in cash by Nilava at the time for her maintenance, and for the satisfaction of miscellaneous debts incurred by her and her huaband. Six months after that, i. e. in November 1900, Nilava sold the property in suit to the present defendant for Rs. 1,500, Rs. 1,200 out of which,were in respect of the mortgage just referred to, and Rs. 300 were stated to have been taken in cash to meet the expenses of household afffairs in those days of famine and to pay off other debts. The defendant was the son-in- law of Nilava. In November 1907 the plaintiff was adopted by Nilava, and Nilava died in December 1907. On March 25, 1908, defendant paid off the mortgage of May 22, 1900, and obtained possession of the property. It is found that Rs. 1,100 were paid in fact to satisfy that mortgage.

(2.) On December 22, 1919, the plaintiff filed a suit in the Athni Court for setting aside the sale-deed passed by Nilava in favour of the defendant, and to recover possession of the plaint lands with mesne profits; but it was found that that Court had no jurisdiction to entertain the suit with the result that the plaint was returned for presentation to the proper Court. The suit was then filed on November 17, 1920, in the Court of the First Class Subordinate Judge at Belgaum. The defendant pleaded that both these alienations, one by way of mortgage and the other by way of sale, were for legal necessity, and that in any case the plaintiff's claim was time-barred.

(3.) The learned trial Judge examined the evidence relating to the alleged necessity for these alienations, and he came to the conclusion that the sale to the defendant was not proved to be for legal necessity. He was not satisfied that Rs.300, said to have been paid in cash, were in fact paid. But he held that the transaction was not a nominal and colourable transaction, and he also held it proved that the defendant had actually paid in March 1908, Rs.1,100 to the mortgagee for the satisfaction of the mortgage of May 22, 1900. The learned Judge, however, came to the conclusion that the plaintiff's claim was time-barred. He held it to be time-barred on the ground that it was essential for the plaintiff to set aside the sale-deed in favour of the defendant, and that Art. 91 of the Indian Limitation Act, Sch. I, would apply to such a claim. He found, however, as a fact that the defendant obtained possession of the property in March 1908. He also found that the time taken up by the plaintiff in prosecuting his remedy in the Athni Court should be excluded, and he expressed the opinion that if Art. 91 were not applicable, the plaintiff's claim would be in time as being within twelve years from the date when the defendant's possession became adverse to the plaintiff deducting the time occupied in the Athni Court In the result, though he found that the defendant had paid off the mortgage, and that the plaintiff was otherwise entitled to the relief subject to the payment of Rs. 1,100, he dismissed the plaintiff's suit on the ground of limitation.