1. Plaintiff-respondent, Chand Kiran, is the next presumptive reversioner to the estate of one Harbans, who died leaving behind him a widow, Mt. Lado. On 4th September 1918, Mt. Lado executed a simple mortgage of the property in suit in favour of Balwant Singh. Balwant Singh obtained a decree on the basis of the mortgage, in Suit No. 1147 of 1930. Plaintiff-respondent, Chand Kiran, and his brothers then instituted a suit, being Suit No. 409 of 1931, in the Court of the Munsif of Meerut for a declaration that the decree in Suit No. 1147 of 1930 was not binding upon the reversioners of Harbans, after the death of Mt. Lado. The suit was dismissed on 8th January 1932 on the only ground that it was barred by limitation under Article 125, Limitation Act. Mt. Lado then executed a sale deed on 16th October 1948, to pay up the decree in Suit No. 1147 of 1930.
2. The present suit was brought for a declaration that the sale-deed dated 16th October 1943, will not bind the plaintiff after the death of Mt. Lado. It was dismissed by the Court of first instance on the ground that it was barred by limitation. The lower appellate Court has reversed the decision of the trial Court on the question of limitation and has remanded the suit for determination of the remaining issues. Aggrieved by this decision of the lower appellate Court the defendants have come up in appeal to this Court and it is contended on their behalf that the suit was barred by limitation.
3. It is the common case of the parties that Article 125, Limitation Act, applies. The contention of the learned counsel for the appellants is that the alienation really took place in the year 1918 and that the alienation in the year 1943 was a mere consequence of the earlier alienation. It is, therefore, contended that the suit, which was brought more than 12 years after the alienation of 1918, was barred by limitation. In support of this contention learned counsel has relied upon four cases.
4. Jaggi v. Prithi Pal, 1894 A. W. N. 134 and Kamakshi Ammal v. Poochammal : AIR1925Mad567 are cases where a Hindu widow had made a mortgage and the property mortgaged had been sold in execution of the decree obtained on the basis of the mortgage. The suits were brought more than 12 years after the date of the mortgage but within 12 years from the date of the execution sale. It was held in either case that the limitation for the suit began to run from the date of the mortgage and that the claim was barred by limitation. In my opinion, these cases have no application to the present case. The distinguishing fact is that no other alienation but the mortgage was made by the widow in either of the two cases. Limitation could, therefore, begin to run only from the date of the mortgage. The execution sale was not an alienation by the widow and it could, therefore, not give a starting point for limitation under Article 125 of the Act. In the present case a fresh alienation has been made by the widow in the year 1943, and Unless something is shown to the contrary, gives rise to a fresh period of limitation in respect of the alienation of the year 1943.
5. Venkatasubbayya v. Subramaniam : AIR1925Mad941 is the third case relied upon by the learned counsel. In that case an attempt was made to bring the suit within the period of limitation by computing the period, not from the date of the alienation by the widow, but from the date when the alienee from the widow himself made a further alienation. This case also has no application to the present case and is again distinguishable on the ground that the second alienation was not an alienation by the widow. K. Adeyya v. T. Govindu A. I. R. (18) 1931 Mad. 274 : (131 I. C. 609) has no bearing upon the present case. It is a case dealing with Article 141, Limitation Act, and has no concern with Article 125, Limitation Act, upon which the decision of the present appeal should depend.
6. It was contended by the learned counsel that in order to give relief to the plaintiff in this case it is necessary for the Court to decide whether the mortgage of the year 1918 was a mortgage within the powers of a Hindu widow or not, for without such decision it is not possible to adjudicate upon the validity of the sale deed of 1943. It was then contended that the binding nature of the mortgage of 1918 is no longer open to controversy in the present case, firstly because the claim to any such adjudication is barred by Article 125, Limitation Act, and secondly because it is barred by the rule of res judicata. In my opinion, there is no force in either of the two contentions.
7. The law of limitation does not stand in the way of adjudication of this controversy in the present suit. Limitation bars the remedy : it does not destroy the right unless a case is of the description provided for by Section 28, Limitation Act. The present case is not such a case. Therefore, the right to challenge the validity of the mortgage of 1918 was not destroyed, but continued to exist even after the expiry of 12 years from 1918. Of course a suit could not be instituted to obtain a declaration in respect of it. The alienation of 1943 has given a fresh cause of action for a suit in which not only the alienation of 1943 can be challenged, but in which the binding nature of the mortgage of 1918 may also be enquired into in order to adjudicate upon the validity of the sale-deed of 1943.
8. The earlier suit did not decide the issue about the validity of the mortgage of 1918. It left that matter open. The suit was dismissed on the sole ground that it was barred by limitation. There is thus no adjudication between the parties on the point whether the mortgage of 1918 was for legal necessity or not. There is thus no decision which can operate as res judicata in the present suit.
9. For the reasons indicated above I am of opinion that there is no force in this appeal. It is, therefore, dismissed with costs.