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Baiva Khan Daud Khan Vs. Bhiku Sazba - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom475
AppellantBaiva Khan Daud Khan
RespondentBhiku Sazba
Excerpt:
limitation - mortgage--redemption suit against purchaser from mortgage--purchase in good faith--limitation act ix of 1831, schedule ii, articles 134 and 148--limitation act xv of 1877, schedule ii, article 134 and section 2. - - whereas, owing to the omission of the words 'in good faith' from article 134 of act xv of 1877, the period of limitation prescribed under that act would be twelve years from fadke's sale to ratkar, through whom the respondent claims; 1. whether patkar purchased in good faith and for value from fadke? , 2. whether the respondent purchased in good faith and for value from patkar?.....1877, which provides that when the 'period of limitation prescribed by the act is shorter than the period prescribed by the limitation act ix of 1871, the suit may be brought within two years after the 1st october 1877, unless where the period prescribed for such suit by the same act shall have expired before the completion of the said two years.'2. by article 134 of act ix of 1871 the period in the case of a bond fide purchaser for value from a mortgagee is twelve years from the date of the purchase, and, therefore, if the respondent is to be regarded as such, the period of limitation would not be affected by article 134 of act xv of 1877. but, assuming that the respondent cannot be treated as a bond fide purchaser for value, article 148 of act ix of 1871 would have been applicable.....
Judgment:

Charles Sargent, C.J.

1. Article 134 of the Limitation Act XV of 1877 would, prima facie, be applicable to the case; but the attentions of the Subordinate Judge with appellate powers would appear not to have been drawn to the latter part of Section 2 of Act XV of 1877, which provides that when the 'period of limitation prescribed by the Act is shorter than the period prescribed by the Limitation Act IX of 1871, the suit may be brought within two years after the 1st October 1877, unless where the period prescribed for such suit by the same Act shall have expired before the completion of the said two years.'

2. By article 134 of Act IX of 1871 the period in the case of a bond fide purchaser for value from a mortgagee is twelve years from the date of the purchase, and, therefore, if the respondent is to be regarded as such, the period of limitation would not be affected by article 134 of Act XV of 1877. But, assuming that the respondent cannot be treated as a bond fide purchaser for value, article 148 of Act IX of 1871 would have been applicable before Act XV of 1877 was passed. See the remarks of the privy Council in Radavalabh Das v. James Scott Elliot 6 Beng. L.R. 543; and the plaintiff would have had sixty years from the date of the mortgage to redeem as against the respondent; whereas, owing to the omission of the words 'in good faith' from Article 134 of Act XV of 1877, the period of limitation prescribed under that Act would be twelve years from Fadke's sale to Ratkar, through whom the respondent claims; Fadke having purchased, as is clear from the terms of the conveyance to him only the rights of the original mortgagee and nothing more, The period of limitation for recovering the land, would, therefore, in that case have been shortened by Act XV of 1877, and the mortgagor would be seriously, prejudiced if that law were applied to him. Section 2 of Act XV of 1877 is, under these circumstances, we think, applicable,-the object of that section being, as stated by Melvill, J., in Ichhhasankar v. Killa I.L.R. 4 Bom. 88 ' to extend for two years the benefit of the old law in cases in which a plaintiff would be prejudiced by the application Co his case of the provisions of the new law, and would prevent the plaintiff's suit, which was filed on the 1st May 1879 - i.e., within two years after 1st October 1877-from being barred.

3. We must, therefore (but without being supposed to express any opinion as to the relevancy of the second issue which has been asked for by both the pleaders), send the case down for the Subordinate Judge with appellate powers to find on the following issues:

1. Whether Patkar purchased in good faith and for value from Fadke?,

2. Whether the respondent purchased in good faith and for value from Patkar?

And if either of these issues be found in the negative, then to find

3. What is still due on the mortgage to Abaji?

4. And to send the findings to this Court within three months. Both parties to be allowed to give fresh evidence on the above issues.


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