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Vishvanath Bhiva Raul Vs. Tukaram Vithu - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case Number Second Appeal No. 273 of 1924
Judge
Reported inAIR1925Bom417; (1925)27BOMLR661
AppellantVishvanath Bhiva Raul
RespondentTukaram Vithu
DispositionAppeal allowed
Excerpt:
indian limitation act (ix of 1908), articles 134, 148 - mortgagee-transferee/ram mortgagee with notice-suit to redeem.;article 134 of the indian limitation ant 1908 does not apply to a suit by a mortgagor to recover possession of the mortgaged property from an alienee of the mortgagee who has taken with notice of the mortgage. such a suit is governed by article 148 of the act.;tainmiya v. shibelisahib (1919) 22 bom. l.r. 802, followed. - .....the property on july 7, 1906, to one shankar laxmau for rs. 300, the document purported to be a sale deed, but contained this clause: 'i have given in your custody for keeping them with you the documents that i have regarding the said house ' those documents included the assignment of the mortgage rights given by ganu to yamunabai shankar, therefore) knew that the owner was only a mortgagee. on september 21, 1907, shankar sold the plaint property to the present defendant for rs. 400. that document contained the following clause: 'the said property was in the vahivat of yamunabai by right of the assignment deed of may fi, 1902. she sold it to me for rs. 300 on july 7, 1906, and passed to me a registered sale deed for it. before that yamunabai was in vahivat of the said property. since.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued to redeem and recover possession of the plaint land from the defendant. The plaintiff claimed through one Chimabai, who mortgaged the suit property to one Ganu for Rs. 75 on June 2, 1896, with possession. On May 5, 1902, Gaim assigned his mortgage rights to one Yamunabai kom Laxman for Rs. 125, Yamunabai sold the property on July 7, 1906, to one Shankar Laxmau for Rs. 300, The document purported to be a sale deed, but contained this clause: 'I have given in your custody for keeping them with you the documents that I have regarding the said house ' Those documents included the assignment of the mortgage rights given by Ganu to Yamunabai Shankar, therefore) knew that the owner was only a mortgagee. On September 21, 1907, Shankar sold the plaint property to the present defendant for Rs. 400. That document contained the following clause: 'The said property was in the vahivat of Yamunabai by right of the assignment deed of May fi, 1902. She sold it to me for Rs. 300 on July 7, 1906, and passed to me a registered sale deed for it. Before that Yamunabai was in vahivat of the said property. Since we purchased it from her it was in our vahivat and we have sold it to you.' At the end of the document it is stated as follows : 'I have given into your custody for keeping them the assignment deed of the said house, the possessory mortgage deed and the sale deed passed by Yamunabai

2. The defendant sought the protection of Article 134 of the Indian Limitation Act. The trial Court said :-

Where the transferor is a mortgagee and the transferee has notice of that fact, in such a case Article 134 was no application at all and the suit against the transferee would come within Article 148 (see Tuiramiya v. Shibelitithii : 22 Bom. L.R. 802 ). [When a transferee for value from a mortgagee seeks the protection of Article 134:, he must be] a person who purchases that which is de facts a mortgage upon the representation made to him and in the belief that it is [not a mortgage but) an absolute [sale] title.

3. Those are the words of Sir Charles Sargent in Panda v. Vithu I.L.R(1894) . 19 Bom. 140 . The Judge continued :-

In other words he must have reasonable grounds for believing, and must believe, that his alienor had the power to convey an absolute interest and not merely the interest of a mortgagee.

4. Accordingly the Judge passed a redemption decree in favour of the plaintiff. In appeal the Judge said :-

I am unable to comiur in the opinion of the Second Class Subordinate Judge that Art, 134 does not apply where the transferee has notice that his transfer of title is that of a mortgagee and not of an owner.

5. He relied upon the decision in Yesu Ramji v. Balkrishnu Lakshman I.L.R(1891) . 15 Bom. 583; but that case was considered in Pandu v. Vithu I.L.R(1894) . 19 Bom. 140. In Keshav v. Gafurkhan : (1922)24BOMLR319 , also referred to by the Judge, the purchaser only became aware five or six months after his purchase that his transferor was a mortgagee, and the judgment of the High Court must be considered with regard to that fact, AH the Judge considered that the defendant had acquired a complete title to the house in suit under Art, 134, and the plaintiff had no right to redeem, the plaintiffs suit was dismissed with coats.

6. We think on the facts of this case, and especially on the Hiding of the appellate Judge, that the defendant had constructive notice of the previous transactions relating to the plaint house, that he cannot take advantage of the provisions of Article 134 of the Indian Limitation Act. We think the proper view to take of this case is, that, in spite of the sale deed, first Shankar and then defendant, were transferees of the mortgagee's rights. In that case the decision of this Court in Tairamiya v. Shibali-shibalisahib (1909) 22 L.R. 802 will apply, and the plaintiff will be entitled to redeem the property from the possession of the defendant.

7. We, therefore, allow the appeal and restore the decree of the trial Court. Six months are allowed to the plaintiff for redemption, to ran from the time the proceedings reach the trial Court.

8. The plaintiff will be entitled to his costs in this Court and in the Court below.


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