1. The question in this appeal is whether the plaintiffs-respondents are entitled to accounts under Section 15(b) of the Dekkhan Agriculturists' Relief Act from defendants Nos. 1, 2 and 3, appellants.
2. The land in suit belonged to one Bhagojappa. In 1882 he mortgaged it with possession to Santangava father of Renava, Exhibit 101. In 1893 the mortgagor sold the equity of redemption to Lalsaheb, Exhibit 99. In 1902 Lalsaheb died leaving a brother Davalsaheb. Defendant No, 4, Yamanava, claims to be Lalsaheb's widow and is the mother of Rajava and Balesaheb, the plaintiffs. In 1905 defendant No. 4, Yamanava, purporting to act as the guardian of plaintiff No. 2, and Lalsaheb's brother Davalsaheb sold the equity of redemption to one Shivabaaappa the predecessor-intitle of defendants Nos. 1, 2 and 3, appellants, and on October 10, 1907, Shivabasappa redeemed the mortgage from the heirs of the original mortgagee Santangava. Plaintiff No. 2 was born on September 9, 1902. On December 20, 1924, the two plaintiffs claiming to be the sons of Lalsaheb brought the present suit for accounts of the mortgage under the Dekkhan Agriculturists' Relief Act and in the alternative for seven-eighths share in the property by partition. Defendants Nos. 1, 2 and 3 are the heirs of Shivabasappa. Defendant No. 4, Yamanava, is the mother of the plaintiffs, and defendant No. 5, Bhimappa, is the successor-in-title of the original mortgagee, Santangava Defendants Nos. 1, 2 and 3 denied that defendant No. 4 was the wedded wife of Lalsaheb or that the plaintiffs were his legitimate sons. They also raised the plea that the suit as framed would not lie and an issue of limitation.
3. The trial Court held on the first issue that defendant No. 4 was the lawful wife and that plaintiff No. 2 the legitimate son of Lalsaheb. It found on the issue of limitation that the suit was barred either under Article 134 or 144 of the second schedule of the Indian Limitation Act and dismissed the suit. In appeal by the plaintiffs, the lower appellate Court held that the suit was one for accounts and therefore fell under Article 120, or in the alternative under Article 148, and was, therefore, within time. It, therefore, reversed the decree of the trial Court and remanded the suit for accounts under Section 15(b) of the Dekkhan Agriculturists' Relief Act. Defendants Nos. 1, 2 and 3 appeals.
4. On the question of fact I agree with the concurrent findings of the lower Courts that although defendant No. 4 led an immoral life before she went to Lalsaheb, it appears that they lived together as man and wife for a period of two years when plaintiff No. 2 was born, and that he was entered in the register as the son of Lalsaheb. The plaintiffs and their mother appear to have been throughout accepted both in the lifetime of Lalsaheb and after his death by his brother Davalsaheb as legitimate; and as such conduct is opposed to the interest of Davalsaheb who would otherwise have been the heir, the conclusion of the lower Courts on this point, particularly at this date, cannot be resisted.
5. The main issue in question is the issue of limitation. The good faith, whether of Shivbasappa or of the mortgagee, is not questioned. Therefore, on the facts it must be assumed that the purchase by Shivbasappa in 1905 of the equity of redemption and his redemption in 1907 when the mortgagee gave up possession i to him were in good faith both on the part of Shivbasappa and on the part of the mortagee. Article 134 of the Indian Limitation Act has no application to such facts. The mortgagee did not purport to do anything outside or opposed to his mortgage. It was not a transfer by the mortgagee in the sense in which that word is used in that Article. It is, therefore, unnecessary to consider the discussion in the lower Courts particularly of the question whether the view of this Court in Pandu v. Vithu ILR (1894) 19 Bom. 140 has been practically overruled by the decision of their Lordships of the Privy Council in Subbaiya Pandaram v. Mohammad Mustapha Marcayar ILR (1923) Mad. 751. But it may be observed that the decision in Pandu v. Vithu related to Article 131 of the Indian Limitation Act of 1877, in which the words were 'purchased from' and not as in the present Act 'transferred by'. The question of the applicability of Article 134 has been considered in recent cases such as Rukku Shetti v. Ramachandraya ILR (1925) Mad. 29 and Skinner v. Naunihal Singh (1929) L.R. 66 IndAp 192, 31 Bom. L.R. 854.
6. Under the original deed of mortgage the mortgagee was to pay to the mortgagor half the produce after deducting interest on Rs. 950, the mortgagor similarly making up the balance of such interest in case half the produce fell below this interest. It was alleged by the appellants that from 1905 to 1907 between their purchase of the equity of redemption and their redemption they received this half of the produce from the mortgagee. But in any case, the appellants' actual possession only began with the redemption in 1907. The present suit was filed by the plaintiffs more than three years after they attained majority. The question is whether the possession of the appellants from 1907 to 1924 was or was not adverse to the mortgagors-respondents. It is argued for the appellants that this possession in virtue of their combined purchase was in their own absolute right, and therefore adverse to all the world and adverse to the knowledge of the respondents particularly in virtue of the clause of the mortgage deed referred to above in regard to the payment to the mortgagors of half the produce after deduction of the interest. It is contended for the respondents that defendant No. 4 the mother had under Mahomedan law no right to sell the equity of redemption even with the uncle Davalsaheb. The transaction must, therefore, be treated as void and the possession of the defendants would not be adverse, and reliance is placed on Ramlingappa v. Dhondi : (1922)24BOMLR1304 .
7. A Mahomedan mother has no power to alienate the immoveable property of the son: Imambandi v. Mutsaddi . At the same time, the previous case-law and even the observations of the Privy Council in that case show that it is not a transaction forbidden by law and void in that sense but rather one outside the powers of the mother though it may be justified by cases of extreme necessity, as appears from the observations of Mr. Ameer Ali in the same case. Nor can it be said that possession cannot be adverse as against the minor. That is a question to be considered on the facts of each ease: Sedaramaraju v. Subbaraju ILR (1921) Mad. 361. There can be adverse possession of the equity of redemption: Puttappa v. Timmaji ILR (1889) 14 Bom. 176 and Tarabai v. Dattaram (1924) 27 Bom. L.R. 441. In the present case, there can be no question to my mind that from 1907 the appellants had been holding the property as owners in their own right adversely to the plaintiffs-respondents. The mother and the uncle purported to convey the equity of redemption to Shivbasappa, and Shivbasappa in 1907. redeemed the property from the mortagagee who in good faith took the amount and retruned possession from 1907: It is clear that the appellants had been holding as owners and not on behalf of the mortgagor or mortgagee. Accordingly the trial Court was, in my opinion, right in holding that the suit was barred by adverse possession under Article 144 of the second schedule of the Indian Limitation Act, I am unable to follow the lower appellate Court in its view that Article 120 applies.
8. In regard to the observations of Shah J. in Ramlingappa v. Dhondi : (1922)24BOMLR1304 , in that case the original sale of the equity of redemption was by a minor and therefore the transaction could not be justified. Moreover, the possession of the defendants was for a period of nine years before suit and it was therefore necessary for them to tack on three years of the interval between the purchase of the equity of redemption from the minor and the period of redemption, That they were not allowed to do. In any case the plaintiff', a minor in that suit, had sued within three years from the date of attaining majority, so that this point did not really arise. In the present case, it is not necessary for the appellants to tack on the period of two years 1905 to 1907 and it is not necessary therefore to consider the nature of their possession before 1907. Their actual possession did not take place till after redemption in 1907. The decision in Ramlingappa v. Dhondi : (1922)24BOMLR1304 and the observations of Shah J. are not, therefore, of any assistance to the respondents.
9. On the question of the frame of the suit, as is pointed out for the appellants, the suit is simpliciter one for accounts under the Dekkhan Agriculturists' Relief Act. Before the respondents could claim such accounts they had to show that the sale-deed, Exhibit 100 of 1905, was outside the powers of the mother. The defendants could in such a suit raise the plea of extreme necessity. This is all the more plain from the alternative relief which the plaintiffs had claimed from the outset, viz., the partition of seven-eighths showing a possibility that the sale-deed of defendant No. 4 was valid at least to the extent of her one-eighth share. To such a case the decision of their Lordships of the Privy Council in Mt. Bachi v. Bickchand (1910) 13 Bom. L.R. 56, followed by this Court in Chandabhai v. Ganpati : AIR1916Bom199 , directly applies, and on this ground also the suit must fail.
10. In the result, therefore, I am of opinion that the suit as framed did not lie and is barred by limitation under Article 144 of the Indian Limitation Act.
11. The appeal is allowed, the decree of the lower appellate Court is set aside and the decree of the trial Court is restored with costs throughout on the plaintiffs-respondents.