MURAJALLI MUNIA GOUNDAN Vs. RAMASAMI CHETTI

JUDGEMENT

(1.) The facts admitted or found are that 1st defendant and his father Gopal Row, mortgaged their property to 2nd defendant with possession under Exhibit I. Gopal Row afterwards sold the equity of redemption, as though the property were his self acquisition, to 3rd defendant by Exhibit II. The lower appellate court has found and we accept its findings, that the property belonged to the family and the sale does not bind 1st defendant. After Gopal Row s death, 1st defendant sold to plaintiff by Exhibit A and plaintiff now sues for possession of 1st defendant s share on payment of the appropriate proportion of the mortgage amount, which 3rd defendant has paid. The question is whether the suit, filed on 26th August 1912, is in time. It will be if the Article of Schedule I, Limitation Act, applicable is No. 148. It may be, if the Article is No. 144 and 3rd defendant s possession, which, it is not disputed, began in 1898, was not adverse to 1st defendant and plaintiff. It will not be if the Article is No. 126.

(2.) It is simplest to disregard for the present the distinction between Articles Nos. 144 and 126. The substantial question is then whether the suit is for redemption or for possession, subject no doubt to the satisfaction of 3rd defendant s lien. It is brought in effect by one co- owner, represented by plaintiff, for recovery of mortgaged property redeemed by another co- owner and now in possession of his transferee, 3rd defendant; and argument has turned on whether Article No. 148 or 134 would apply to the case thus simplified. The question has not been dealt with by this Court. But the conclusion reached in Allahabad and Bombay is in favour of the latter. It was no doubt held in Ashfaq Ahmad v. Wazir Ali (1889) I.L.R. 14 All. 1 that, when one co-heir of a mortgagor had redeemed the whole mortgage the suit against his representative was subject to Article No. 148. But recently, when that decision was considered in Jai Kishan Joshi v. Budhanand Joshi (1915) I.L.R. 38 All. 138 the question being whether Article 134 should be applied against a transferee from a redeeming co-owner on the assumption that the latter had the equivalent of a mortgage right, one learned Judge held with reference to the principle stated in Section 95, Transfer of Property Act, he was only a charge- holder and applied Article No. 144 whilst the other concurred, observing with reference to the earlier decision that the possession of the charge-holder need not be regarded as in all respects equivalent to that of a mortgagee. The view taken in Ashfaq Ahmad v. Wazir Ali (1889) I.L.R. 14 All. 1, was not adopted in Vasudev v. Balaji (1902) I.L.R. 26 Bom. 500, or in other cases decided by the Bombay High Court and referred to therein or in Bhaiji Shamrao v. Hajimiya Mahomed . The objections made to the reasoning in these authorities are that the Transfer of Property Act was not applicable to the facts, the mortgage in the later Allahabad case having been executed before it and the act not being applicable to the Bombay Presidency at the time, and that the distinction between the positions of a mortgagee and a charge-holder or as he is called in the Bombay cases, alienor, has been abrogated since the decision of the Privy Council in Vasudeva Mudaliar v. Srinivasa Pillai (1907) I.L.R. 30 Mad. 426. The first is unsubstantial, the principle involved not depending on the Act for its validity. The second was no doubt not noticed in the judgments in question. But it cannot affect the conclusion. For the Privy Council held only that a simple mortgage was to be treated as equivalent to a charge for the purpose of Article No. 132, not that every charge was a mortgage for the purpose of Article No. 134. And the argument is unsustainable, because 3rd defendant s right, being equivalent only to that of Gopal Row, is, as the cases referred to show, not based on the principle of subrogation recognised in Section 101, Transfer of Property Act. For neither Gopal Row nor 3rd defendant became or could have become absolutely entitled to the property so far as, 1st defendant s share was concerned. As Danappa v. Yamnappa (1902) I.L.R. 26 Bom. 379 and other cases referred to in Rushan Ali Khan Chowdury v. Kali Mohan Moitra (1906) 4 Cal. L.J. 79 show the right is to contribution and is secured only by a lien. These considerations applied to the present case, decision must be that plaintiff s suit is not for redemption and is not subject to Article No, 148.

(3.) The question is then between Articles Nos. 126 and 144, the contention in connection with the latter being that enquiry must be held to ascertain the date, at which 3rd defendant s possession became adverse to 1st defendant and plaintiff. It is urged that the lower appellate court has already dealt completely with the matter in its reference to 1st defendant s alleged acquiescence; but that is only one aspect of it. The decision in Bhavrao v. Rakhmin (1898) I.L.R. 23 Bom. 137 has been referred to as negativing 3rd defendant s right to an enquiry; but it is not clear that it can be applied to the facts in the cases before us. To these facts Article No. 126 is exactly applicable; and it was applied to similar facts in Ramaswamy Aiyar v. Vanamamalai Aiyar (1914) 26 I.O. 873 the superfluity of any enquiry as to the character of defendant s possession being pointed out. The suit being subject to Article No. 126 and having been filed over thirteen years after the possession of 3rd defendant began, is out of time and must be dismissed with costs throughout, the District Munsif s decree being restored and the appeal being allowed. Sadasiva Aiyar, J.