PANNA LAL Vs. RAMESHAR SAHAI

JUDGEMENT

(1.) I have stated the facts of this case at some length in my remand order of July the 3rd 1914. The finding of the lower Appellate Court on the remanded issue puts it beyond question that the plaintiff is the successor-in-interest of the original mortgagor. The essential facts may, therefore, be recapitulated. On the 24th of January 1867 the predecessor-in-title of the present plaintiff mortgaged by conditipnal sale a house in the town of Chandausi to one Hazari Lal and put him in possession. On June the 15th, 1873, Hazari Lal sold this shop to Panna Lal, the defendant-appellant. There had been no foreclosure of the mortgage by conditional sale. In the deed of June the 5th, 1873, Hazari Lal recited that the shop in question had come into his possession under a mortgage by conditional sale, but that he was now in possession as a full owner. He did not say that he had foreclosed the mortgage. He undoubtedly purported to sell the shop itself and not any mortgagee rights in respect of the same. The lower Appellate Court has found that the vendee, Fanna Lal, did not in fact believe that his vendor had power to convey an absolute interest in the shop.

(2.) I must pause to note that this finding is challenged in argument on behalf of the appellant. It is contended that it was not fairly open to the lower Appellate Court to arrive at this finding. The learned Subordinate Judge held that the very recital in the sale-deed of 1873 was calculated to put the vendee on his guard, that the vendee made no sort or kind of inquiry but went into the transaction with eyes shut. He has, however, gone further than this. Relying partly on the wording of the document and partly on certain facts and circumstances regarding the location of the shop, residence of the parties and so on, and partly on certain oral evidence, he has come to the conculsion that, when the vendee chose to accept his vendor s assertion that he was in full proprietary possession of the shop, he had good reason for believing that this assertion was not true, and did not in fact believe it to be true. Sitting as a Court of second appeal, I am not prepared to hold that the lower Appellate Court had not before it materials on which it was entitled to arrive at the above finding.

(3.) If this finding cannot be disturbed, it seems to me that, according to a long course of decisions in this Court, this suit for redemption must succeed and the plea of limitation set up by the defendant-appellant must be overruled. I refer to Bhagwan Sahai v. Bhagwan Din 9 A. 97 : A.W.N. (1886) 303; Kampta Prasad v. Bakar Ali A.W.N. (1881) 122 and Husaini Khanam v. Husain Khan 29 A. 471: A.W.N. (1907) 133 : 4 A.L.J. 375. It has been contended on behalf of the appellant that these decisions are inconsistent with later opinion in this Court itself. On this point reference is made to the case of Bchari Lal v. Muhammad Muttaki 20 A. 482 : A.W.N. (1898) 123. I have also been referred to a case decided elsewhere by one of the learned Judges of this Court, namely Dal Singh v. Gur Prasad 2 Ind. Cas. 250 : 12 O.C. 84 and it has been contended that the same learned Judge has recently re-affirmed the view taken by him in Oudh in an uureported decision in Second Appeal No. 547 of 1914 pronounced by him on March 11, 1915. Further, I have been asked to consider that the current of decisions of this Court with regard to the application of Article 134 of the first Schedule to the Limitation Act (IX of 1908) is inconsistent with the opinions pronounced by other High Courts. There would certainly appear to be a clear consensus of opinion to the contrary in the Bombay High Court, reference being made to Baiva Khan Daud Khan v. Bhiki Sabza 9 B. 475; Yesu Ramji Kalnath v. Balkrishna Lakshman 15 B. 583; Pandu v. Vithu 19 B. 140 and Ramchandra v. Sheikh Mohidin 23 B. 614. Other cases to which I have been referred in argument may be found reported as Ram Kanai Ghosh v. Raja Sri Sri Hari Narayan Singh Deo Bahadur 2 C.L.J. 546 and Chettokulam Prasanna Venkata-chela Reddiar v. Collector of Trichinopoly 24 Ind. Cas. 369 : (1914) M.W.N.587 : 26 M.L.J. 537. Finally it was suggested that the latestdecision of this Court relied uponon behalf of the plaintiff-respondent, namely, that in Husaini Khanam, v. Husain Khan 29 A. 471: A.W.N. (1907) 133 : 4 A.L.J. 375 proceeds upon a view as to the effect of a mortgage by a trustee or a mortgagee amounting to a "purchase" within the meaning of Article 134 of the first Schedule to the Limitation Act, or I should say to a transfer of the property in question within the meaning of the same Article as it appears in Act IX of 1908, and is inconsistent with the pronouncement of their Lordships of the Privy Council in Abhiram Goswami Mohant v. Shyama Charan Nandi 4 Ind. Cas. 449 : 6 A.L.J. 857 : 14 C.W.N. 1 : 11 Bom. L.R. 1234 : 19 M.L.J. 530 : 10 C.L.J. 284 : 36 C. 1003.