DAULAT Vs. BALIRAM

JUDGEMENT

(1.) JACKSON , A.J.C. 1. This appeal arises from a suit for redemption of a usufructuary mortgage. After th'e death of the mortgagee his son sold the property mortgaged in 1907. The suit for redemption having been brought more than 12 years after the transfer has been held to be time-barred under Article 134, Schedule 1, to the Limitation Act. It is urged, in the first place, that the sale was merely of the mortgagee's rights and not an absolute sale of the property and that the finding of both the lower Courts that it was an absolute sale is based on an inadmissible oral evidence as to the intention of the parties There is no mention of mortgage rights in the deed and prima facie it purports to be a sale of the property and not of those rights. The fact that it is mentioned in the deed that the fields comprised in the property stood in the khata of Baliram Kunbi, the original mortgagor, and the fact that there is an indemnity clause cannot prove that mortgage rights only were transferred. If it can be held that the absence of any assertion in the deed of absolute ownership on the part of the vendor makes it possible to hold that only the mortgagees's rights were sold, a view which appears to have been taken by the Privy Council in Radanath Doss v. Gisborne & Co. [1870] 14 M.I.A. 1, then, there is a latent ambiguity to remove which evidence can be given.

(2.) FOR the appellant it is argued that the fact that no enquiry into the title of the vendor was made by the purchasers is evidence that only the mortgage rights were transferred. This argument is based on Muthaya Chetti v. Kandhappa Chetti [1918] 34 M.L.J. 431 in which at p. 438 it is said: If, for instance, it should appear that tha purchaser refrained from calling for and examining the title-deeds and from examining, the register of assurances, or from enquiry as to who was in possession of the property, or otherwise abstained from means available to him of ascertaining the title or that he in fact inspected the mortgage document under which the vendor claimed the property, there would be evidence upon which the Court might hold that the parties did not intend to transfer an absolute property but such interest only as was vested in the transferrer, or possibly that the mortgagee intended to commit a fraud upon the mortgagor and that the transferee was accessory thereto or did not act in good faith.

(3.) AS to the other possible inference suggested in the Madras decision, it appears to me immaterial whether the purchasers acted in good faith or not. The words "in good faith" occurred in the provisions of the Limitation Acts of 1859 and 1871, which correspond to Article 134 of the present Act. They have, however, been omitted in the Acts of 1877 and 1908, and their omission cannot be without significance. It has been held in Keshav Raghunath v. Gafurkhan A.I.R. 1922 Bom. 234, Baluswamy Ayyar v. Venkataswamy Naicken [1917] 40 Mad. 745, and Rukku Shetti v. Ramachandraya A.I.R. 1926 Mad. 81, that good faith is immaterial and that Article 134, applies, even if the transferee knew that the transferrer was only a mortgagee. Article 134 applies to transfers by trustees and mortgagees, and in Rustomji's Law of Limitation a distinction is suggested between transfers by these two classes. That distinction has been rejected in Rukku Shetti v. Ramchandraya A.I.R. 1926 Mad. 81, and it is difficult to see how it can be drawn, in face of the clear wording of the Article, which leaves no room for any such distinction.