Charles Fawcett, Kt., A.C.J.
1. The plaintiff brought this suit in 1924 to recover possession of a half share of certain property, which had been sold by his father to defendant No. 1 on November 21, 1918. His plaint farther asked that a prior mortgage deed to defendant No. 1, and an award which was based upon that mortgage deed, should be set aside, as well as the sale-deed of 1918. The Subordinate Judge held that the suit was time-barred on the following grounds:-
The validity or otherwise of the sale deed of 1918 depends upon the validity of the prior mortgage, etc. It is therefore necessary for the plaintiff to show that the first mortgage passed in 1905 is not binding against him. The cause of action for setting aside this mortgage accrued to the plaintiff in 1905 under Article 126 of the Limitation Act, but he could not then sue for setting it aside as he was a minor. He attained majority on February 2, 1921, or February 25, 1021, He should have therefore died the suit on February 25, 1924, at least, i.e, within three years from the date he became a major; but the suit has been filed on November 12, 1924. The suit is therefore quite barred by time.
2. On appeal to the District Judge, he held that the suit was not time-barred, and in his judgment he says :-
The learned Subordinate Judge thinks that limitation began to run from the date of the mortgage in 1905, and therefore holds the suit barred. I cannot accept this view. The record does not appear to show whether defendant No. 1 took possession under his mortgage, but in any case the mortgage, in my opinion, wag not an alienation which in was necessary for the plaintiff to, set aside. The mortgage might be paid off, and as a matter of fact it is no longer subsisting. I do not see how the previous mortgage transactions can effect plaintiff's right to challenge the out and out alienation by sale.
3. He, therefore, set aside the lower Court's finding and the dismissal of the suit, and remanded the case for trial on the merits.
4. The defendants have come to us in second appeal on the ground that the lower Court erred in holding that the plaintiffs suit was not barred by limitation. In our opinion, so far as the plaintiff seeks to recover possession and to set aside the sale of: 1918, the appropriate article of the Indian Limitation Act that applies is Article 126, as has been held by both the lower Courts. That article has frequently been applied in such cases. A recent instance is the case of Ranodip Singh v. Parmeshwar Prasad I.L.R (1924) All, 163 where the Privy Council applied that article to a similar case. Out undoubtedly that article contemplates the case of an alienation where, the alienee has taken possession of the property, because limitation only runs from the date when the alienee so takes possession. It is only when such possession has been taken that any cause of action accrues to the plaintiff, so far as Article 126 is concerned. Thus in Bindeshri Upadhiya v. Sital Upadhiya (1927) I.L.R. All. 163 it was laid down that this article was based upon the principle that the son's knowledge of alienation by his father ordinarily arises when he sees the alienee in possession; that in cases where the alienee never gets possession, no limitation can arise under Article 125; and that in such cases the only right of the son will be to obtain a declaration that the deed is invalid, and the limitation prescribed for such a suit is that of sis years under Article 120. A similar ruling was given in Munia Goundan v. Bamasami Chetty I.L.R (1918) 41 Mad. 650.
5. The position taken up by both aides in the arguments before us is that the mortgagee never obtained possession and the suit by the plaintiff to set aside either an instrument of mortgage or an award, in regard to which no possession was given, would accordingly fall under Article 91 or Article 120 of the Indian Limitation Act. Mr. Kane has strongly contended that any such suit was time-barred at the date when the present suit was brought by the plaintiff. We agree with that contention. But the question still remains whether that fact suffices to make the present suit time-barred, although so far as it seeks to obtain possession on the basis of the alienation of 1918 being an invalid one, it is in time under Article 126, We are not prepared to go as far as Mr. Kane asks us to do. It is to be noted that Section 28 of the Indian Limitation Act is confined to suits for possession of property. It says :-
At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such Property shall be extinguished.
6. If in the present case the plaintiff had had a cause of action to sue the defendants for possession of the property on the basis of the mortgage and the award being invalid, so that any such suit was time-barred at the date of the present suit, then undoubtedly Section 28 would apply and would bar a suit for possession based on a subsequent transaction. But in the present case, as have remarked, he could only have sued to set aside certain instruments, or for a declaration that they were not binding upon him, and such suits do not fall within the four corners of Section 28 of the Indian Limitation Act. Therefore, though the plaint in fact asked the Court to set aside the mortgage and the award, yet that prayer should, in our opinion, be treated as surplusage. The main relief claimed by him was to obtain possession on the basis of the sale-deed of 1918 being invalid, and the mere fact that a suit to set aside the previous transactions was time-barred in 1926 does not, in our opinion, suffice to make the suit time-barred in respect of the claim to recover possession. As an instance of a somewhat similar kind I may refer to the Madras Full Bench case of Periasami Mudaliar v. Seetharama Chettiar I.L.R. 27 Mad. 243 There the plaintiffs sued to set aside certain alienations of their father, and the Court held that if the suit had been brought on their original cause of action, it would have been time-barred; but as it was brought on a cause of action arising from a subsequent event, it was not time-barred. Similarly in the present case the suit is actually brought upon the alienation of 1918 and the possession then given to the alienee; and the fact that a suit brought in 1924 in respect of the previous transactions might have been too late, does not suffice to make the present suit time-barred.
7. In our opinion there has been no error of law on the part of the District Judge. The Subordinate Judge was obviously wrong when he said the cause of action for setting aside the mortgage of 1905 accrued to the plaintiff in 1905 under Article 126 of the Indian Limitation Act. As I have said, it is common ground that no possession was actually given to the mortgagee, so Article 126 could not apply at all, No doubt the question of the validity of the mortgage and the award may have to be gone into at the hearing. But that is open to the parties as a piece of evidence, which may favour one side or the other. The question of the limitation applicable to a suit to set aside such a mortgage or award is not one that affects the question of admissibility of evidence as to the validity of the documents.
8. For these reasons we dismiss the appeal with costs.