1. The question in this appeal is whether the plaintiff-respondent No. 1's suit is barred by limitation under Article 134 of the second schedule of the Indian Limitation Act. The trial Court held that it was, the lower appellate Court that it was not. Defendant No. 2 appeals.
2. The suit is in respect of Survey No. 124. The original owner, Rudrappa, passed a simple mortgage of it and of another survey -No. 149 and other property in 1876 in favour of defendant No. 1 Robertson. The simple mortgage recited that in default of re-payment within three months, the mortgagee was to be let into possession and to remain in possession until the mortgage amount was fully repaid. It was not so paid within three months. In April 1878, Rudrappa passed a rajinama and kabuliyat in respect of the land in suit in favour of the plaintiff-respondent's adoptive father, and in July 1878 the mortgagee obtained a decree for possession against the mortgagor Rudrappa, and in execution was placed in possession. On May 23, 1879, defendant No. 1 sold the entire mortgaged property to the deceased father of defendant No. 2-appellant and placed him in possession of Survey No. 124 in suit. The other Survey No. 149 is in possession of defendants Nos. 3 and 4-respondents. On January 9, 1924, the plaintiff-respondent instituted the present suit for redemption and possession of Survey No. 124 and joined therein as defendant No. 1 the original mortgagee Robertson, defendant No. 2 the son and successor-in-title of the purchaser from defendant No. 1 in 1879, and defendants Nos. 3 and 4 the persons in possession of the other Survey Number. The contesting defendant No. 2 raised various contentions questioning the title of the plaintiff to redeem. As regards the adoption of the plaintiff it was held that the question was res judicata by reason of the omission of defendant No. 2 who did not raise the point in a previous suit. This view has not been questioned in appeal. The trial Court held on all the points in favour of the plaintiff except on the point of limitation. On that point it held that the suit was barred under Article 134 of the Indian Limitation Act and dismissed it. In appeal, the learned assistant Judge was of opinion that it was not so barred and the plaintiff agreed to pay the full mortgage amount if he was placed in possession of Survey No. 124 only. Accordingly the lower appellate Court reversed the decree of the trial Court and ordered the plaintiff', on payment of Rs. 1,000 to defendant No. 2, to recover possession of Survey No. 124.
3. The first and the main question is in regard to limitation. It is argued for the appellant that on the terms of his sale-deed recited in the judgment of the lower appellate Court, the appellant thought that he was taking the full title free of the mortgage, and he is therefore entitled to the benefit of Article 134, and time ran in his favour from the date of his sale-deed in 1879 when he obtained possession from the mortgagee decree-holder-defendant No. 1. It is argued that the omission of the words ' in good faith ' in the corresponding Article of the Indian Limitation Act of 1871, even if they are not equivalent to an implicit addition of ' in bad faith ' in the Article as it stands at present, at least reduces the onus on the transferee from the mortgagee such as the appellant. Reliance was placed for this proposition on the decisions of this Court in Baivahhan Baud Khan v. Bhiku Sazba ILR (1885) 9 Bom. 475 and Yesu Mamji Kalnath v. Balkrishna Lakshman ILR (1891) 15 Bom. 583, and of the Madras High Court in Bukku Shetti v. Ramachandraya ILR (1925) Mad. 29 and Subbaiya Pandaram v. Mohammad Mustapha Marcayar ILR (1923) Mad. 751, It is argued for respondent No. 1 that as on the terms of his previous purchase the appellant took it with clear notice of the mortgage, Article 134 has no application.
4. From the terms of the mortgage, it is apparent that although the last three sentences use the words ' ownership and owner ' the appellant's vendor claimed title from Rudrappa only as mortgagee in possession under the decree and no further. This clear admission of title in Rudrappa must outweigh the use of the terms such as 'Malik of the land' which the appellant must be held to have taken with clear notice of title of Rudrappa and of his right to redeem. The question is, whether, even so, Article 134 applies and time can run in his favour from the date of the sale-deed and possession. The authorities, at least of this Court, are, in my opinion, clear, that in the case of a transferee in possession with such clear notice, Article 134 would not apply and time cannot run. I am bound by the decision of the Divisional Bench of this Court in Vishvanath v. Tukaram : AIR1925Bom417 , following the consistent decisions of this Court such as Pandu v. Vithu ILR (1894) 19 Bom. 140 where Sir Charles Sargent remarked at page 144 in regard to the omission of the word 'bona fide' as follows :-
But although the article does not, in our opinion, require the purchase to be ' bona bona ' in the sense of being made without ' constructive notice ' of the restricted nature of the vendor's title, we agree with what is said in Bhagwan Sahai v. Bhagwan Din ILR (1886) All. 97 as to the remark of Lord Cairns in construing Section 3, Act XIV of 1859 in Madanuth Doss v. Gisborne (1871) 14 M.I.A. 1, being equally applicable to the article under consideration, viz., that by a purchaser rauat be meant a person who purchases that which is de facto a mortgage upon the representation made to him and in the belief that it is an absolute title a requisite, which, it is to be observed, Lord Cairns treats (see 14 Moore's I. Section, p. 20) as quite distinct from what he mentions to be the second requisite to enable Section 5 to be applied, viz., that the purchase should be ' bona fide.'
The previous decisions of Sir Charles Sargent C. J. in Baivahhan v. Bhiku and Veahu Ramji v. Balkrishna are in no way different, It suffices for the purposes of the present appeal to observe that the omission of the words 'in good faith' do not necessarily imply its words 'in bad faith' or even apply to a purchaser with notice of the existing mortgage. This view is affirmed by the Allahabad High Court in Naunihal Singh v. Alice Georgina Skinner ILR (1925) All. 803, on appeal : (1929)31BOMLR854 in which it was held that Article 134 was designed for the protection of a transferee who has been led by a mortgagee to believe that he is acquiring not merely mortgagee's right but a full proprietary title, a view affirmed by their Lordships of the Privy Council in Skinner v. Naunihal Singh : (1929)31BOMLR854 . They observed (p. 863) : 'The article contemplates a transfer by a mortgagee purporting to transfer a larger interest than that given by the mortgage or at any rate an interest unencumbered by a mortgage.' The view of the Madras High Court in Rukhu v. Bamchandraya is somewhat in favour of the appellant's contention. It purports indeed to rely on a previous decision of the Privy Council, Subbaiya Pandaram v. Mahammad Mustapha. That decision however, can be distinguished on the ground that at the time of the purchase, the respondent believed that he was getting an absolute title and it was only afterwards 'that it came to his knowledge that the property was a trust property' it was held that subsequent knowledge would not prevent him from the benefit of Article 134-a view followed by this Court in Keshav v. Gafurkhan (1923) 24 Bom. L.R. 319. The Madras decision doubtless contains a remark in favour of the contention of the appellant; but it actually proceeds on the ground that the transferee acted bona fide throughout according to the strictest meaning of the term and that the transfer fell within the last category out of the four to which Ramesam J. referred, * whereas the present falls under the second, viz., 'where the transfer purported to be a sale-deed but as a matter of fact only an assignment of the mortgagee's interest was all that was bargained for,' in which case Article 131 would not apply. For these reasons it appears to me that the knowledge of the mortgage on the part of the appellant and of its subsistence on the date of the sale are proved and time would not run in his favour. Article 134, therefore, does not apply and is of no avail at all.
5. The second ground on his behalf rests on the interest conveyed by the rajinama and kabuliyat. That ground was apparently given up in the lower appellate Court. It has been observed in cases such as Chandanmal v. Bhaskar (1919) 22 Bom. L.R. 140 and Hanmant v. Krishna (1923) 27 Bom. L.R. 642 that the question whether a rajinama and kabuliyat are conclusive evidence of sale depends on the facts of each particular case. In the present case they find place in the record of rights and it is in evidence that possession was transferred and the plaintiff respondent's father actually sold the property. I see no reason to differ from the view of the trial Court that Rudrappa intended to and did convey his right to redeem to the plaintiff respondent's father.
6. The last ground is in respect of splitting up of the mortgage. It is doubtful if the appellant ever had possession of the other property. Certainly defendants Nos. 3 and 4 are in possession of the property other than Survey No. 124. The plaintiff-respondent was willing to pay the full mortgage amount for that Survey Number, a portion of the mortgaged property.
7. In the result, therefore, the appeal fails and must be dismissed.
8. The plaintiff-respondent's costs of the appeal on defendant No. 2-appellant. Each party to bear his own costs in the lower Courts.