1. In this case the plaintiff's father mortgaged certain land to defendant No. 1'a grand-father in the year 1871 with possession. Two years after that the plaintiff's father again mortgaged the same property for an additional sum of Rs. 100 to the same mortgagee. This document contains a term that the property should be enjoyed by the mortgagee for a period of twenty-one years in full satisfaction of the debt and after the completion of the said period, possession of the property should be restored to the mortgagor free of the mortgage charge. The plaintiff's father died in 1877. Under the term that I have just mentioned the property should have been given back to the mortgagor about 1894. But that was not done. In 1909 the plaintiff brought a suit against the mortgagee's representatives to redeem and recover possession of the land, alleging that it had been agreed the defendants should retain possession of the land for four years more after the term of twenty-one years had expired, and would then surrender it to his father, but had not carried out the agreement. In that litigation the main question that arose and was decided was whether the document of 1873 was a usufructuary mortgage or a lease, and it was held that it was a usufructuary mortgage. The trial Judge had found the deed to be a lease and dismissed the plaintiff's suit, but the two appellate Courts held that it was really a mortgage and the case was. sent back for trial on the merits. Apparently that suit was not further prosecuted by the plaintiff and it was dismissed for non-appearance. The plaintiff's present suit was brought in 1921 to recover possession and mesue profits on the ground that defendants' mortgage-right had been fully discharged The Subordinate Judge dismissed the plaintiff's suit with costs holding that the equity of redemption under the mortgage had been extinguished by a subsequent passing of a Rajinama and a kabulayat. The Rajinama was passed by the plaintiff's father to the mortgagee in 1877 and a corresponding kabulayat to Government was passed by the mortgagee. Defendants Nos. 1 and 2, who are the grandsons of the original mortgagee, and defendant No. 5, who is the purchaser of a portion of the plaint property from defendant No 1, all set up this Rajinama and kabulayat as having extinguished this mortgage.
2. The District Judge in appeal from this decision held that there was no transfer of ownership by the Rajinama and kabulayat and that the equity of redemption still subsisted. No other question, he says, was proposed, and he therefore granted the plaintiff a decree for possession with costs and an order as to future mesne profits.
3. Defendant No. 5 has appealed from this decision on the ground that the Rajinama and kabulayat have in law extinguished the equity of redemption. Mr. Jathar, in support of this contention, has drawn our attention to various rulings of this Court in regard to the effect of a Rajinama and a kabulayat, such as have been passed in the present case, viz., Tarachand Pirchand v. Lakshman Bhavani I.L.R.(1875) 1 Bum. 91Vishnu Sakharam Phatak v. Kashinath Bapu Shankar I.L.R. (1886) 11 Bom. 174 Venkaji v. Gopal : AIR1914Bom124(2) ; Imam v. Bhau (1917) 19 Bom. L.R. 329 Narso v. Nagava and Chandanmal v. Bhaskar : (1918)20BOMLR358 . He contends that the effect of all these cases but the last is that a legal presumption arises from the passing of the Rajinama and kabulayat, that a transfer of ownership is intended to be effected, and that accordingly it operates, just an if it was a sale, to extinguish the equity of redemption. Now, no doubt, the earlier cases did rather go that way and in particular the case of Venkaji v. Gopal is very similar to the present case. Also in Narso v, Nagaia (1910) 22 Bom. L.R. 140 Beaman J. in his judgment takes the view that the passing of the Rajinama and kabulayat is fairly conclusive evidence that a transfer of ownership has in fact been made. But in the last named case of Chandanmal v. Bhaskar, Sir Norman Macleod, Chief Justice, and Heaton J., who was a party to some of the previous cases, held that it does not necessarily by itself amount to a transfer of the property, and that each case must depend upon its own facts. Speaking for myself, I think that this is certainly a more reasonable view to take than the view that the Court should at once presume that a transfer of ownership is intended if a rajinama and a kabulayat have been passed. 1 do not think that there is any current of authority in this Court which would justify our holding that a legal presumption arises under Section 114 of the Indian Evidence Act such as the appellant's pleader contends for. That section only says that the Court ' may presume,' and the last ruling to which our attention has been called is distinctly against its presuming that the Rajinama and kabulayat have the effect of transferring the ownership of the property. Heaton J., in his judgment in this case, says (p. 143):-
A Rajinama and Kabulayat do not by any means completely take the place of a sale-deed. They only servo as documentary evidence of transfer, it that transfer can properly be inferred from the totality of facts proved; and these must usually at any rate comprise a good deal more than the Rajinama and Kabulayat themselves.
4. As I have already said he was a party to some of the previous decisions, and considerable weight attaches to these remarks He certainly does not take a view that there is any presumption of the kind I have mentioned, because he says that the totality of facts proved must usually comprise a good deal more than the rajinama and kabulayat. In the present case the District Judge has considered the circumstances and has come to the conclusion that the passing of the rajinama and kabulayat was probably due to the inconvenience that would arise in regard to the payment of assessment, which the mortgagee had undertaken to make, if the mortgagor Basapa continued to hold the Khata of the land, and that there was no indication that they were intended to have any other effect. That is a conclusion which, on the view of law that I have mentioned, he was entitled to take and it seems to me an entirely resonable one. Therefore, I do not think that there is any error of law which would justify our inference with this conclusion in second appeal.
5. It has, however, been urged that in any case the suit is barred by limitation, because the mortgagee had given up possession in 1894, and even allowing for the extra period during which the plaintiff' in the previous suit of 1909 said it was agreed that the mortgagee should remain in possession, there had been over twelve years before the present suit was brought, in which the representatives of the mortgagee had adverse possession. But this is a point which I do not think we can now go into. It is not a point that has been taken in the memorandum of appeal, and, therefore, it cannot now be urged without the leave of the Court under Order XLI, Rule 2, read with Order XLII, Civil Procedure Code. If the point of limitation had arisen on the face of the plaint, then no doubt there is authority for saying that leave should be given as a matter of course. But in the present case it appears to me that the point of limitation cannot be properly decided without some evidence as to the circumstances in which the mortgagee continued to have possession of the land subsequent to 1894. No such evidence appears to have been given, and although the point of limitation was taken into the written statement of defendants Nos. 1, 2 and 5 no issue relating to it was raised in the trial Court. In the appellate Court also the District Judge said 'no other question was proposed.' So that it seems to me clearly a case where we should not give leave for this point to be taken, and, in any case, as it cannot be decided without the case being remanded for additional evidence, it cannot succeed in second appeal. I would, therefore, dismiss the appeal with costs.
6. In the previous litigation between the parties this Court had disallowed the contention of the present appellant that the transaction was a lease and had upheld the contention of the respondents that it was a mortgage. The appellant's possession, therefore remains as mortgagee; and it was for him from the outset, if he relies on hie possession having become adverse, clearly to plead the facts and the date when it so became. Having failed to do so, it is hardly open to him in second appeal to set up a contention of adverse possession and limitation.
7. As regards the rajinama and kabulayat, I would respectfully agree with the decision in Chandanmal v. Bhaskar (1919) 22 Bom. L.R. 140. They are evidence, the effect of which must be weighed in each case on the merits In the present case the only other circumstance in favour of the appellant is the long possession. That is largely nullified by the death of the original mortgagor in 1877 within four years of the second mortgage. In the absence of evidence as to age or knowledge of the possession in the plaintiff's son by the mortgagor, that circumstance coupled with the rajinama and Kabulayat is not enough to show that the parties intended to convert a mortgage into a sale. I agree, therefore, that the appeal fails and must he dismissed with costs.