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Bagas Umarji Miyaji Vs. Nathabhai Utamram - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai
Decided On
Case NumberAppeal No. 46 of 1910
Judge
Reported in(1911)13BOMLR1057; 12Ind.Cas.737
AppellantBagas Umarji Miyaji
RespondentNathabhai Utamram
Excerpt:
.....;the plaintiff sued in 1906 to redeem a mortgage dated 1854. in 1904, the representatives-in-title of the mortgagee, claiming to be absolutely entitled, mortgaged the land with possession to a, who sold his rights to defendant no. 5. the suit having been brought more than twelve years after the alienation to a, the defendant no. 5 claimed as against the plaintiff the interest of a mortgagee by virtue of his adverse possession under article 134 of the limitation act. ;that it was obligatory on the plaintiff to redeem the defendant no. 5 also, before he could recover possession of the property.;yesu ramji v. balkrishna lakshman (1891) i.l.r. 15 bom. 583; maluji v. fakirchand (1896) i.l.r. 22 bom. 225 and ramchandra v. sheikh mohidin (1899) i.l.r. 23 bom. 614, followed. ;abhiram..........of opinion should be treated as overruling the bombay decisions on titles based upon adverse possession as mortgagees.3. first, it is necessary to bear in mind the observations of lord halsbury in quinn v. leathern [1901] a.c. 495 that every judgment must be read as applicable to the particular facts proved and assumed to be proved since the generality of the expressions that may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found.4. this caution is particularly necessary in the present connection because it appears from the report in abhiram goswami v. shyama charan nandi ; 11 bom. l.r. 1234 that none of the cases in which a mortgagee has been treated as a.....
Judgment:

Basil Scott, Kt., C.J.

1. The main facts of the case are that the plaintiff seeks to redeem a mortgage effected prior to 1854. The representatives-in-title of the mortgagee, claiming to be absolutely entitled, mortgaged the land with possession to the fifth defendant's predecessor-in-title, Achratlal Govandas, in 1894. This suit was filed more than twelve years later and the fifth defendant claims as against the plaintiff the interest of a mortgagee by virtue of his adverse possession under Article 134 of the Limitation Act. The lower appellate Court has upheld this contention, which is supported by the authority of three judgments of this Court: Yesu Ramji Kalnath v. Balkrishna Lakshman ILR (1891) 15 Bom. 583; Maluji v. Fakirchand ILR (1896) 22 Bom. 225; and Ramchandra v. Sheikh Mohidin ILR (1899) 23 Bom. 614, in all of which a mortgagee from one who professed to hold absolutely was held to be a purchaser for valuable consideration within the meaning of the Article. It is contended for the respondents upon cross-objections that this interpretation of Article 134 is inconsistent with the judgment of the Judicial Committee in Abhiram Goswami v. Shyama Charan Nandi ; 11 Bom. L. R. 1234. In that case their Lordships were considering the applicability of the Article to a person claiming a title by adverse possession under a permanent lease. The distinction between a leasehold and an absolute interest was pointed out and the conclusion arrived at was that their Lordships were unable to give to the Limitation Act the wider interpretation adopted by the High Court at Calcutta and to treat the lessee as a purchaser under Article 134 of the Act of 1877. The purchaser, their Lordships said, must be the purchaser of an absolute title.

2. The question is whether this expression of opinion should be treated as overruling the Bombay decisions on titles based upon adverse possession as mortgagees.

3. First, it is necessary to bear in mind the observations of Lord Halsbury in Quinn v. Leathern [1901] A.C. 495 that every judgment must be read as applicable to the particular facts proved and assumed to be proved since the generality of the expressions that may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found.

4. This caution is particularly necessary in the present connection because it appears from the report in Abhiram Goswami v. Shyama Charan Nandi ; 11 Bom. L.R. 1234 that none of the cases in which a mortgagee has been treated as a purchaser for value within the meaning of Article 134 were referred to in argument or in the judgments of the High Court or the Judicial Committee.

5. On the other hand in confirmation of the conclusion arrived at in the Bombay cases we have referred to it is permissible to note the altered wording of Article 134 as it appears in the Limitation Act of 1908. For the words of Article 134 of the Act of 1877 'and afterwards purchased from the trustee or mortgagee for a valuable consideration' are substituted the words 'and afterwards transferred by the trustee or mortgagee for a valuable consideration' this we take to be a legislative recognition of the soundness of the view that the Article was intended to give protection to all transferees for value including mortgagees. In support of the reference to the later Act as a legislative exposition of the earlier one we may refer to Swift v. Jewsbury (1874) 9 Q.B. 301 and Morgan v. London General Omnibus Company (1883) 12 Q.B.D. 201. It is also material to observe that in the very recent case of Shri Ishwar Shyam Chand Ji v. Ram Kanai Ghose (1911) 13 Bom. L.R. 421 Lord MacNaghten in delivering, the judgment of the Judicial Committee said with reference to the case of Abhiram Goswami v. Shyania Charan Nandi: 'Whatever might have been the inclination of their opinion if the matter had been res Integra it seems to their Lordships that they would not be justified in reviewing on an ex parte application the considered judgment of the Board delivered after full argument. They will, therefore, simply follow the decision in Abhiram Goswami v. Shyama Charan Nandi. They do so with the less hesitation because the language of the Article under discussion in that case and in this has been altered by subsequent legislation'.

6. In our opinion the cross-objection fails for the above reasons.

7. We see no cause to interfere with the remand order which is appealed against. We dismiss both the appeal and the cross-objection with costs on the parties respectively preferring them.


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