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Keshav Raghunath Joshi Vs. Gafurkhan Daimkhan Bubere - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 425 of 1921
Judge
Reported in(1922)24BOMLR319; 67Ind.Cas.308
AppellantKeshav Raghunath Joshi
RespondentGafurkhan Daimkhan Bubere
DispositionAppeal dismissed
Excerpt:
.....having sued in 1918 to redeem the mortgage :-;that the suit was barred under article 134 of the indian limitation act, as it was not filed within twelve years from the date of the transfer.;per macleod c.j.-''the indian limitation act makes no provision for the case of a transferee who gives valuable consideration at the time of transfer from an ostensible owner, but finds later on that his transferor was only a mortgagee and not owner of the property transferred. unless direct provision is made in the act that on the acquisition of such knowledge, the time which had previously begun to run against the mortgagor should stop, it is difficult to say that the later knowledge on the part of the transferee would prevent time running in his favour. good faith is no longer required on the..........the second defendant to recover possession of the suit property must fall under article 134 of the indian limitation act if it is not filed within twelve years from the date of the transfer. but the appellant wishes to rely on the fact that within a few months of the transfer, the second defendant acquired the knowledge that martand was a mortgagee and not an owner. defendant no. 2 stated that he asked martand why he sold the property if he was only a mortgagee, and martand said he had become the owner in pursuance of an agreement, which he promised to give to the second defendant later on. whether that story is true or not, the indian limitation act makes no provision for the case of a transferee who gives valuable consideration at the time of transfer from an ostensible owner, but.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff sued to recover by redemption possession of the plaint property. The property had been mortgaged with possession in 1891 by one Ganpat Bhiva Chavan for himself and as guardian of his minor nephew Krishna Babaji Chavan to the first defendant's father Martand. The equity of redemption eventually came to two girls, Kondi and Niri, from whom the plaintiff purchased in 1918.

2. In 1902, Martand sold the property to the second defendant purporting to be the owner thereof, and the second defendant has since been in possession.

3. It is clear then that any suit against the second defendant to recover possession of the suit property must fall under Article 134 of the Indian Limitation Act if it is not filed within twelve years from the date of the transfer. But the appellant wishes to rely on the fact that within a few months of the transfer, the second defendant acquired the knowledge that Martand was a mortgagee and not an owner. Defendant No. 2 stated that he asked Martand why he sold the property if he was only a mortgagee, and Martand said he had become the owner in pursuance of an agreement, which he promised to give to the second defendant later on. Whether that story is true or not, the Indian Limitation Act makes no provision for the case of a transferee who gives valuable consideration at the time of transfer from an ostensible owner, but finds later on that his transferor was only a mortgagee, and not owner of the property transferred.

4. There does not seem to be any direct authority on this point But unless direct provision is made in the Act that on the acquisition of such knowledge, the time which had previously begun to run against the mortgagor should stop, it is difficult to say that the later knowledge on the part of the transferee would prevent time running in his favour. Good faith is no longer required on the part of the transferee. Article 134 of the Indian Limitation Act XV of 1877 had the words' and afterwards purchased from the trustee or mortgagee for a valuable consideration,' while in the present Article 134 the words are ' and afterwards transferred by the trustee or mortgagee for a valuable consideration.' In Bagas Umarji v, Nathabhai UtamramI.L.R. (1911) Bom. 146 13 Bom. L.R. 10 it was pointed out that the alteration in the language of Article 134 of the Indian Limitation Act (IX of 1908) was a ' legislative recognition of the soundness of the view that the Article was intended to give protection to all transferees for value including mortgagees.' Therefore the appeal must be dismissed with costs.

Coyajee, J.

5. I agree that in the present state of the law it is difficult to give effect to the contention raised on behalf of the appellant, namely, that five or six months after the purchase the second defendant obtained the mortgage deed itself from Martand and that therefore he had knowledge of the nature of his vendor's rights. The learned District Judge in this connection observes:-

There is, however, nothing to show, and no good reason to believe that the recitals in his sale-deed were made in collusion with him and the mortgage bond was handed over to him at the time the sale-deed was passed and not subsequently as stated by him. On the whole, therefore, I find upon the strength of the recitals in the sale-deed, that the mortgagee Martand had purported to sell the land as his absolute property and defendant No. 2 had purchased it as such. That being so, the case is governed by Article 134 of the Indian Limitation Act.

6. The learned Judge is right. When a mortgagee sells the mortgaged property as an ostensible owner and there is valuable consideration for the sale, the right of the purchaser becomes unassailable by the mortgagor by the lapse of twelve years from the date of the purchase. The mortgagee may be dishonest, the purchaser may not make any enquiry as to his vendor's title; the mortgagor may be ignorant of the sale of his property by the mortgagee: these facts no longer affect the rights of the purchaser who has given valuable consideration. Article 134 of the Indian Limitation Act (IX of 1871) required 'good faith' on his part. That condition was, however, removed by Act XV of 1877 and is not re-imposed by Act IX of 1908. The language of the enactment now in force being clear, the plaintiff's suit must fail.


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