MULLA VITTIL SEETI KUTTI Vs. KMKKUNHI PATHUMMA

JUDGEMENT

(1.) Our rules only provide for a reference to a Full Bench where both the learned Judges constituting the Bench agree that the question of law to be referred is involved in the determination of the case. There are weighty and obvious reasons for this limitation, and it is therefore desirable that we should confine ourselves to the questions which actually arise in the present case. The suit is to redeem a mortgage of the year 1862 and is within time as against the mortgagees, having been brought within sixty years from the date of the mortgage, Article 148. The question is whether it is also within time as against transferees from the mortgagees, or is barred under Article 134 as having been brought more than twelve years from the date of the transfer. The plaintiff s mortgagees acting as full owners executed several usufructuary mortgages of items 2 and 3 under which they have been out of possession of these items since 1862 and 1894 respectively. The most recent mortgages of both these items were more than twelve years before suit, but the present mortgagees did not get possession under these mortgages from the prior mortgagees as regards item 2 until 1900 and as regards item 3 until after the institution of the present suit.

(2.) As regards both items the suit is covered by the language of Article 134 taken in its natural sense, but it is said that, as the plaintiff had no occasion to sue the present transferees by way of mortgage from the original mortgagees until they took possession as regards item 2 in 1900 and as regards item 3 after the institution of this suit, the article does not apply. With regard to the last case it must be remembered that possession was not with the mortgagees but with prior transferees from them, so that for over thirty years the mortgagors if they wished to recover possession of the suit properties would have had to sue transferees from the mortgagees.

(3.) This result, it is said, may be arrived at in three ways: (1) by reading the date of transfer in the third part of the article as meaning transfer with possession, (2) by holding that the article only applies to cases where possession is given on the date of the transfer and (3) by holding that time did not run under the article until the transferees from the mortgagees took possession. In my opinion none of these solutions is admissible. Article 134, as is well known, is founded on Section 25 of the Real Property Limitation Act 1834 which, after providing generally in Section 24 that suits in equity should be barred in the same way as actions at law, went on to provide in Section 25 that when land is vested in a trustee the right of the cestui que trust to bring an action for the recovery of the land shall be deemed to have first accrued when the land shall have been conveyed to a purchaser for valuable consideration and shall be deemed to have accrued only as against such purchaser and any person claiming through him. This was an exception in favour of the cestui que trust, as it prevented time running against him until there had been a conveyance by the trustees to a purchaser for valuable consideration. Now, as to the first suggestion, it has never been doubted, so far as I know, that when the section applies, time begins to run from the date of the conveyance, and not from the date when possession is taken under the conveyance. The very object of the statute was to get rid of the question as to when possession became adverse, which was the starting point under the Act of James I as construed by the Courts, and to fix a definite period at which the right to re-enter or bring the action for recovery should be deemed to have accrued, To come now to the Indian enactments, there is in my opinion equally little ground for holding " the date of the purchase " in the corresponding Section 16 (V) of the Indian Limitation Act of 1859 and in Article 134 of the Acts of 1871 and 1877 and " the date of transfer " in Article 134 of the present Act mean transfer with possession. Section 16 (V) of the Act of 1859 was obviously taken from Section 25 of the English Act, but was made applicable to purchases from mortgagees as well as from trustees, and there is nothing in the extension to justify us in reading purchase, or now transfer, as purchase or transfer with possession. The word " purchase " was probably substituted for " conveyance " to cover oral sales, but there is no reason to suppose that it was intended to depart in other respects from the starting point provided in Section 25 of the English Act. To adopt this construction in my opinion is simply to alter the statutory starting point and to go back to the date of adverse possession which was the old law modified by the Act of 1834.