Basil Scott, Kt., C.J.
1. In 1896, Kalidas Haribhai, father of the first two defendants, purported to mortgage to Ranchhod Madhdas, whose representative the 3rd defendant now is, an unrecognised share of a bhag or the narva, contrary to the provisions of the Bhagdari Act. Such mortgage by reason of those provisions was void ab initio. The mortgage-deed provided that after possession by the mortgagee for eleven years the mortgage amount was to be paid to him whenever he should demand it either out of property or by the mortgagor or his heirs personally. Ranchhod under the professed mortgage obtained possession of the land, and subsequently his rights under the mortgage claim were sold and purchased by the plaintiff at a Court-sale.
2. In 1910, the plaintiff filed a suit against the representative of Ranchhod and also against the representatives of the professed mortgagor to obtain possession from the representative of Ranchhod of the property then in his possession. No claim was made in that suit for payment of the amount of the so-called mortgage debt, nor was it alleged that any demand had been previously made. The suit failed on the ground that the mortgage was invalid, and therefore unenforceable, and the plaintiff as the purchaser of the mortgagee's claim could get no relief from the Court.
3. The present suit was filed in the following year to recover the amount of Rs. 788-7-0 from the estate of the deceased mortgagor, and, in the alternative, if that should not be allowed, to recover a smaller sum from the holder of a decree against the representative of the deceased mortgagee. The learned Subordinate Judge rejected the plaintiff's claim except in so far as he claimed in the alternative to recover Rs. 577 from the estate of the holder of the decree against the deceased mortgagee.
4. An appeal was preferred to the Joint Judge who has held that the money claim is enforceable under the mortgage-deed and has therefore remanded the case for trial to the lower Court. The question is whether that decision is correct or not.
5. It is first contended that the plaintiff's claim is inadmissible by reason of the law of res judicata, and it is contended that in the suit of 1910 the plaintiff should have claimed the amount of the mortgage debt which he claims in the present suit, and having failed to do so he is barred on the footing that he might and ought to have claimed in that suit. We are of opinion that this argument should not prevail. The claim for possession was not really a claim on the mortgage, but a claim by virtue of the purchase by the plaintiff of the mortgagee's rights. The mortgagee was then in possession, and the plaintiff merely sought to stand in his shoes, but not to exercise against the mortgagee any new rights under the mortgage-deed. Moreover, at the time of the suit of 1910 his right according to the terms of the mortgage-deed had not matured because no demand had been made since the expiry of the eleven years mentioned in the deed. Therefore no cause of action for the debt had arisen, and upon the evidence which was available in the suit of 1910, and which was relevant to the suit of 1910, he had no occasion to sue for the payment of the mortgage money. Therefore it cannot be said that he might and ought to have put forward the present claim in that suit.
6. The second objection is an objection based upon the Indian Limitation Act and is of a more serious character. The learned Judge in discussing the question of limitation observes that the mortgage-deed is dated 19th May 1896. Eleven years expired on 19th May 1907 and the suit was brought on 20th September 1911 within the six years from the date of the cause of action accruing under the registered mortgage-deed, and therefore he held that the suit was not time-barred. We are of opinion that the learned Judge was in error. According to Section 24 of the Indian Contract Act the consideration or part of the consideration being unlawful the mortgage-deed was void, and the agreement contained in the mortgage to pay the mortgage debt was void. That being so, the consideration failed ab initio, and the mortgagee's right was, as held injaverbhai v. Gordhan (1914) 17 Bom. L.R. 259, to claim repayment of the money advanced to the mortgagor within three years of the date of the mortgage-deed as money had and received, but after three years by reason of Article 62 of the Indian Limitation Act, his remedy was barred. For these reasons we set aside the order of the Joint Judge and restore that of the Subordinate Judge with costs throughout on the plaintiff.