VISHVANATH BHIVA RAUL Vs. TUKARAM VITHU

JUDGEMENT

(1.) The plaintiff sued to redeem and recover possession of the plaint land from the defendant. The plaintiff claimed through one Chimabai, who mortgaged the suit property to one Ganu for Rs. 75 on June 2, 1896, with possession. On May 5, 1902, Gaim assigned his mortgage rights to one Yamunabai kom Laxman for Rs. 125, Yamunabai sold the property on July 7, 1906, to one Shankar Laxmau for Rs. 300, The document purported to be a sale deed, but contained this clause: "I have given in your custody for keeping them with you the documents that I have regarding the said house " Those documents included the assignment of the mortgage rights given by Ganu to Yamunabai Shankar, therefore) knew that the owner was only a mortgagee. On September 21, 1907, Shankar sold the plaint property to the present defendant for Rs. 400. That document contained the following clause: "The said property was in the vahivat of Yamunabai by right of the assignment deed of May fi, 1902. She sold it to me for Rs. 300 on July 7, 1906, and passed to me a registered sale deed for it. Before that Yamunabai was in vahivat of the said property. Since we purchased it from her it was in our vahivat and we have sold it to you." At the end of the document it is stated as follows : "I have given into your custody for keeping them the assignment deed of the said house, the possessory mortgage deed and the sale deed passed by Yamunabai

(2.) The defendant sought the protection of Art. 134 of the Indian Limitation Act. The trial Court said :- Where the transferor is a mortgagee and the transferee has notice of that fact, in such a case Art. 134 was no application at all and the suit against the transferee would come within Art. 148 (see Tuiramiya V/s. Shibelitithii : 22 Bom. L.R. 802). [When a transferee for value from a mortgagee seeks the protection of Art. 134:, he must be] a person who purchases that which is de facts a mortgage upon the representation made to him and in the belief that it is [not a mortgage but) an absolute [sale] title.

(3.) Those are the words of Sir Charles Sargent in Panda V/s. Vithu (1894) I.L.R. 19 Bom. 140, 144. The Judge continued :- In other words he must have reasonable grounds for believing, and must believe, that his alienor had the power to convey an absolute interest and not merely the interest of a mortgagee.