1. The suit lands, survey Nos. 154, 155, 150 and 157, belonged to Thorats who mortgaged them to Yadavs in 1877. In 1891 survey Nos. 156 and 157 were sold to Tagares by two documents, Exhibits 62 and 63, for Rs. 99 each. Tagares brought a suit in 1904 against the original mortgagees Yadavs for redeeming the properties comprised in the mortgage of 1877. To this litigation the original owners, Thorats, were parties. Thorats contended in that litigation that the sale-deeds in favour of Tagares were in the nature of mortgages, but the contention was overruled and Tagares were allowed to redeem on payment of Rs. 1,562-8-0. Tagares obtained possession in 1906. The plaintiffs Thorats have brought the present suit in 1924 against Tagares for redemption and accounts of the mortgage transactions and for possession of the suit properties.
2. Both the Courts held that the sale-deeds relating to the lands, survey Nos. 156 and 157, were in fact transactions of sale and not mortgage. With regard to the other two survey Nos. 154 and 155, the Subordinate Judge held that Tagares occupied the position of the original mortgagees and that Article 148 of the Indian Limitation Act applied and not Article 144, and therefore allowed redemption of the lands, survey Nos. 154 and 155, on payment of the proportionate amount of Rs. 665-8-0.
3. On appeal, the learned Assistant Judge held that the suit relating to survey Nos. 154 and 155 was barred by limitation under Article 144 of the Indian Limitation Act, and as he confirmed the finding of the lower Court that the transactions relating to survey Nos. 156 and 157 were in fact sales, he dismissed the suit.
4. In this appeal it is urged on behalf of the appellants that the finding that the transactions relating to survey Nos. 157 and 156 were sales and not mortgages should not be accepted. Further it is urged that the suit to get possession of survey Nos. 154 and 155 is not barred by limitation on the ground that Tanagers stood in the position of strangers and became subrogated to the rights of the mortgagees according to the decision in Tangya Fala v. Trimbak Daga I.L.R. (1916) Bom. 646 18 Bom, L.R. 700 It is also urged that if under Section 95 of the Transfer of Property Act the redemption by Tagares gave them a charge on survey Nos. 154 and 155 and Article 144 of the Indian Limitation Act applied, the suit relating to survey Nos. 154 and 155 would not be barred till it was proved that Tagares set up an adverse title and their possession commenced to be adverse to Thorats, the original owners of the property, more than twelve years before suit.
5. The question as to the real nature of the transactions relating to survey Nos. 156 and 157 was litigated between the parties in the previous suit for redemption brought by Tagares against the original mortgagees Yadavs. In that suit the original mortgagors Thorats were parties and it was held that the transactions represented a sale and not a mortgage of the two survey numbers. The concurrent finding of both, the Courts, based on the evidence in the present case, even apart from the previous decision, that the transaction relating to survey Nos. 156 and 157 represented a sale and not a mortgage, must be accepted.
6. The next question is whether the suit of the plaintiffs Thorats relating to survey Nos. 154 and 155 is in time. The case of Tangya, V. Trimbak does not bear on the question of limitation. In that case a stranger, who paid off a subsisting mortgage, was considered as subrogated to the position of the mortgagee on the analogy of Section 95 of the Transfer of Property Act. The suit related to the enforcement of the equitable right of a person who paid off a subsisting mortgage and did not relate to the question of limitation which arises in the present case. Bo far as survey Nos. 156 and 157 are concerned, Tagares acquired the rights of the original owners and brought a suit for redemption against the mortgagees to which the Thorats were parties. As the mortgage was indivisible, Tagares were allowed to redeem all the four survey numbers on payment of the amount due on the mortgage. Tagares had acquired title to survey Nos. 156 and 157, but so far as survey Nos. 154 and 155 were concerned they were in the position of strangers, though it might be said that they had acquired a right to a portion of the equity of redemption by purchase of two out of the four properties comprised in the mortgage. In a case where a co-sharer redeems a mortgage and gets possession of the whole property, it is hold by this Court that Article 144 of the Indian Limitation Act applies and not Article 148 to a suit brought by the other co-sharer to recover possession of the property on payment of a proportionate part of the mortgage debt. In Vasudev v. Balaji I.L.R. (1902) Bom. 500 4 Bom. L.R. 178 it was held, dissenting from the judgment of the Allahabad High Court in Ashfaq Ahmad v. Wazir Ali I.L.R. (1889) All. 1 that Article 148 would be inapplicable on the ground that the position of a redeeming mortgagor is that of a charge holder and a distinction is drawn between a charge and a mortgage in the Transfer of Property Act by Section 100, and what a redeeming co-mortgagor has is a charge and not a mortgage, and therefore, Article 148 would not apply. It was also held that the suit was barred by limitation after twelve years from the date of the redemption under a decree passed against both the mortgagors. This position has now been accepted by the Madras High Court in Munia Goundan v. Ramasami Chetty I.L.R. (1918) Mad. 650 and by the Calcutta High Court in Puma Chandra Pal v. Barada Prosanna Bhattacharjya I.L.R. (1918) Cal. 111
7. Section 95 of the Transfer of Property Act, before its amendment by Act XX of 1929, refers to one of several mortgagors redeeming the mortgaged property, and it says that 'where one of several mortgagors redeems the mortgaged property, and obtains possession thereof, he has a charge on the share of each of the other co-mortgagors in the property for his portion of the expenses properly incurred in so redeeming and obtaining possession.' Tagares in this case cannot be said to be one of the several mortgagors, nor can they be said to be co-sharers with Thorats. They were entitled to a portion of the equity of redemption in the two lands, survey Nos. 156 and 157, and so far as survey Nos. 154 and 155 were concerned, they had no title as co-sharers. In Umar Ali v. Asmat Ali I.L.R. (1931) Cal. 1167 reference is made to Section 95 of the Transfer of Property Act as being unskilfully drawn and clumsily worded section and the phrase 'one of several mortgagors' was held to mean one of the several persons interested in the equity of redemption, and the expression ' expenses properly incurred in so redeeming ' included the mortgage-debt. It is clear, therefore, on the authorities, that by virtue of the redemption by Tagares of the whole mortgage, they acquired a charge on the properties, survey Nos. 154 and 155, under Section 95 of the Transfer of Property Act, and a suit by Thorats to recover possession of those survey numbers on payment of the proportionate amount of the expenses incurred in redemption will be governed by Article 144 of the Indian Limitation Act and not by Article 148 of the Act.
8. A distinction is, however, drawn where a co-sharer redeems a mortgage and it is held that the possession of the co-sharer after redemption is on behalf of all the co-sharers, and therefore though a co-sharer has redeemed the properties and has acquired a lien under Section 95 of the Transfer of Property Act, his possession does not contradict the possession of the other co-sharers, and his possession is presumably on behalf of all, and unless there is ouster, adverse possession under Article 144 would not begin.
9. In Ramchandra Yashvant Sirpotdar v. Sadashiv Abaji Sirpotdar I.L.R. (1886) Bom. 422 it was held that the holding by a cosharer as a lienor did not, in any way, contradict the ulterior proprietary right of his co-sharer, and it was observed as follows (p. 424):-
On the contrary, it implied and preserved their right, since it would he impossible for a man to hold a lion on his own property. But, then, as long as a possession can be referred to a right consistent with the subsistence of an ownership in being at its commencement, so long must the possession be referred to that light, rather than to a right which contradicts the ownership.
In Vasudev v. Balaji I.L.R. (1902) Bom. 500 4 Bom. L.R. 178 the finding of the lower Courts that the cosharers' possession was adverse was accepted and the suit was hold barred under Article 144.
10. In Bhaiji Shamrao v. Hajimiya Mahamad (1911) 14 Bom. L.R. 314 where one of the tenants-in-common redeemed the mortgage without the knowledge of the other co-tenant, it was held by Scott C.J., on difference of opinion between Beaman J. and Hayward J., that the possession of joint property by one co-sharer did not constitute adverse possession against any other co-sharer until there had been a disclaimer of the latter's title by open assertion of a hostile title by the former. It was held by Beaman J. that a suit would be barred by Article 144 whether redemption was with or without the knowledge of the co-sharers. Hayward J. differed. The precise point was not discussed in the judgment of Scott C.J., who followed the previous decisions of this Court, and held that the possession of joint property by one co-sharer did not constitute adverse possession against any other co-sharer until there was a disclaimer of the latter's title.
11. In the present case Tagares were not co-sharers in any sense of Thorats, and therefore, the principle that the possession of a co-sharer is on behalf of all the co-sharers would not apply. The case of Chandbhai v. Hasanbhai : (1921)23BOMLR1033 can also be distinguished on the ground that it was a case of a co-sharer redeeming the mortgage. It, therefore, follows that if Article 144 applies and a stranger redeems the property and holds it as owner to the knowledge of the original owner, the title to recover possession on payment of the proportionate part of the mortgage money would become barred under Article 144 after the lapse of twelve years, The case of a co-sharer or a tenant-in-common redeeming the mortgage stands on a different footing.
12. In Sambu Hamnanta v. Nama Narayan : (1911)13BOMLR867 the redemption was at the request of the original mortgagor and it was held that the possession of the strangers redeeming the property at the instance of the plaintiff was in their position as honors, and that the lien would exist for twelve years and that after the expiration of the twelve years their lien would be gone and their possession thereafter would be of persons holding without any right and the suit by the original owner would be barred by limitation by the efflux of twelve years from the date of the extinction of the lien. It is somewhat difficult to follow the reasoning in that case, as in the case of Vasudev v. Balaji the possession of even a co-sharer who was in possession as a lienor under Section 95 of the Transfer of Property Act was held to be adverse on the evidence in the case from the date of the redemption, but the facts in that case are quite distinguishable as the redemption was at the request of the original mortgagors.
13. In the previous suit Thorats objected that the transaction with reference to the two survey Nos. 156 and 157 did not represent a sale but represented a mortgage, and they were parties to the redemption decree and knew that Tagares, who had no title to survey Nos. 154 and 155, redeemed them under the decree and remained in possession. Their possession, therefore, to the knowledge of Thorats was open, notorious and exclusive, and the suit of Thorats would become barred by limitation under Article 144, after twelve years from the date when Tagaros obtained possession.
14. In Munia Gounden v. Ramasami Chetty I.L.R. (1918) Mad. 650 where redemption was effected by the purchaser from the father of ancestral property, it was held that the possession of such purchaser after redemption was that of a lienor under Section 95 of the Transfer of Property Act, and the suit of the purchaser from the son was not governed by Article 148 of the Indian Limitation Act but was barred under Article 126, or in the alternative under Article 144. It was observed by Sadasiva Ayyar J. as follows (p. 658):-
In this case, it is clear on the proved documents and the facts found by the lower appellate Court that the third defendant when he purchased in 1897 had the animus to claim title as the sole owner of the equity of redemption and not merely to claim title to the first defendant's father's one-fourth share, and that he took possession in April 1898 with the animus to hold the whole half share against all the world and not a mere co-sharer with the first defendant in that half share.
15. The same view was accepted in Purna Chandra Pal v. Barada Prosanna Bhattacharjya I.L.R. (1918) Cal. 111 where it was held, following the decision in the case of Vasudev v. Balaji, that a suit brought more than twelve years from the date when the charge came into existence and more than twelve years from the date when exclusive possession was obtained in a suit for redemption, would be barred under Article 144 of the Indian Limitation Act.
16. In the present case, Tagares obtained possession of survey Nos. 154 and 155 with the animus of holding the property as against the whole world and had no intention to hold it on behalf of the original owners Thorats. The claim, therefore, of the original owners, Thorats, was rightly hold by the learned Assistant Judge to be barred by limitation.
17. The appeal, therefore, must be dismissed with costs.
18. The facts are that the original owners, the Thorats, mortgaged four separate numbers in 1877 to a man named Jadhav for Rs. 1,000. In 1891 they sold the equity of redemption of two of these survey numbers to Tagares, by two separate deeds each for Rs. 99. In 1904 Tagares sued to redeem the four survey numbers covered by the mortgage, as they were bound to do, and were decreed redemption. They did redeem and got possession in 1906. The original owners, the plaintiffs, were parties to the suit. The defendants wore in possession from 1906 to 1924 when this suit was brought. It was to redeem the two survey numbers which had been redeemed by Tagares, but in which it is now contended the original owners still had the equity of redemption. The suit has failed in the Court below, on the ground that it is governed by the twelve year limitation rule in Article 144 of the Indian Limitation Act, and not by Article 148 which fixes the period of limitation for a suit to redeem.
19. The question turns on a finding as to the real character of the possession of a person interested only in a portion of mortgaged property, who redeems the whole mortgage.
20. It is clear that under Section 95 of the Transfer of Property Act he holds a charge on it, which he can enforce within the period of limitation set out in Article 132, He is in the position of the mortgagee to that extent-but does this make him a mortgagee? If not a mortgagee, is he a coowner, and if so, from what point does his adverse possession begin, if his possession is adverse at all ?
21. There is no decided case on the exact point. We have been referred to the cases of Ramchandra Yeshvant Sirpotdar v. Sadashiv Abaji Sirpotdar I.L.R. (1886) Bom. 422 Vasudev v. Balaji I.L.R. (1902) Bom. 500 4 Bom. L.R. 178 Tangya Fala v. Trimbak Daga I.L.R. (1916) Bom. 646 18 Bom. L.R. 700 and Bhaiji Shamrao v. Hajimiya Mahamad (1911) 14 Bom. L.R. 314 But those are all cases of co-sharers, where the point of departure for limitation would be as in Article 144.
22. Here the redeeming mortgagor had no interest in the property in question, and was merely holding it as having been compelled to redeem it, and so long as the charge he had on it was not discharged. The leading case seems to me to be that of Vasudev v. Balaji. In this case the other party interested was a co-mortgagor and twelve years limitation was held to apply by Sir Lawrence Jenkins and the point of departure was the date of redemption.
23. The other point-the real character of the transaction of the sale of the equity of redemption by Exhibits 62 and 63-has been found against the appellants on the facts by both Courts below.
24. I think that the suit was not in time and that the appeal must be dismissed with costs.