Straight and Tyrrell, JJ.
1. There are four questions raised in regard to this appeal, the first of which relates to the right of the plaintiff to maintain the suit at all. Assuming this to be answered in the affirmative, then we must determine whether the Subordinate Judge was right in holding the suit out of time quoad the share in Kamalpur, and wrong in his view that he is estopped by conduct as to the share in Muhammadpur Mai; and lastly, what was the actual consideration paid by the vendees to the vendors in respect of the shares in those villages.
2. As to the first point, it is admitted that the plaintiff was, prior to 1879, a co-sharer with the vendors in the villages of Kamalpur, Muhammadpur Mai, and Kalupur, jointly answerable along with them for the Government revenue, and subject, in common with them, to the conditions of the wajib-ul-arz applicable thereto. It is also conceded that the shares of the plaintiff in those villages have been made the subject of a perfect partition, and that they have been divided off into a distinct and separate mahal, of which he is the sole proprietor. It is also a fact that the sale he now seeks to impeach was made upon the 13th January 1884, long after such partition, and the point that arises is whether, this partition having taken place, the conditions of the wajib-ul-arz which subsisted prior thereto, and which has not been replaced by another, are still effectual and binding on all the persons who were originally co-sharers in the villages. The question is by no means without difficulty, and, were it res integra, we should have had some doubts in deciding it. There are, however, two rulings of Division Benches of this Court--one Gokal Singh v. Munnu Lal I. L. R., 7 All., 772, and the other, an unreported case, F. A. No. 69 of 1882--the former of which has been followed in the present suit by the Court below, that are directly in point. We are not prepared, as at present advised, to reconsider the rule therein laid down, to the effect that, despite the partition of the village into separate mahals, the existing wajib-ul-arz at the time of partition must be presumed to subsist and govern the separate mahals until it is shown that a new one bad been made. We may add that this view is supported by the terms of the second paragraph of Section 191 of the Revenue Act of 1873. With regard to the second question, the point to be determined is, whether a mortgagee in possession, who purchases the equity of redemption of his mortgagor, purchases anything which is capable of physical possession in the sense of Article 10 of the Limitation Law; and if so, whether such physical possession is complete when the contract of sale is executed, or whether the case falls within the alternative provision of the article which makes the date of registration of the instrument of sale the point from which time begins to run.
3. Now, an equity of redemption is the right now defined by statute, which entitles the mortgagor, at the proper time and place, upon satisfaction of the mortgage-debt, either by payment of the amount to the mortgagee in possession, or after his realization of it from the usufruct of the mortgaged estate, to require him to deliver up possession to the mortgagor, and to execute an instrument re-transferring it, or to have registered an acknowledgment in writing that the mortgage has been extinguished. It follows therefore that when, as in the case before us, the mortgagee is in possession, the sale by the mortgagor to the mortgagee of such right to redeem has the effect of extinguishing such right; or, in other words, there is a merger of the two estates in the mortgagee, who therefore became proprietor of the property mortgaged. We do not think, in a transaction of this description, it can properly be said that any property is sold which is capable of 'physical possession' within the meaning and intention of Article 10 of the Limitation Law. It seems to us that in a statute, such as the law of limitation, which contemplates notice, express or implied, to the party to be affected by some act done by another in respect of which a tight accrues to him to impeach it, and as to which time begins to run against him, quoad his remedy, from a particular point, the word 'physical' implies some corporeal or perceptible act done, which of itself conveys or ought to convey to the mind of a person notice that his right has been prejudiced. We are of opinion that an equity of redemption is not susceptible of possession of this description under a sale by which it is transferred, and that for the purposes of pre-emption a pre-emptor impeaching such a sale has one year from the date of registration of the instrument embodying it within which to bring his suit. As the sale contract in the present case was registered on the 17th of January 1884, the present suit was in time, and we differ from the Subordinate Judge for these reasons, by holding that it was not barred by limitation. Upon the third point, we dissent from the view of the Subordinate Judge that the plaintiff should fail as regards the share in Muhammadpur Mai. He is undoubtedly in time, so far as limitation is concerned, in respect of that share; and in the absence of any proof that it was offered to him and that he refused to purchase it, we see nothing to warrant us in holding that he is equitably estopped by acquiescence in the sale from asserting his right. There remains the question, which formed the fourth issue in the Court below, namely--'What is the actual price of the property in dispute, and what sum has passed between the vendor and vendee, and whether any fraud has been practised on the sale-deed as regards consideration?'
4. The Court below did not determine these matters, having dismissed the suit on preliminary grounds. But this treatment of the case has not excluded evidence on these questions. All the evidence of the parties is on the record, and it is therefore incumbent on us to try this issue and decide it on the materials before us. The plaintiff tendered no evidence as to the actual value of the property or of the fraudulent exaggerations he imputed to the sale-deed. The defendants, on the other hand, gave evidence, which has-not been questioned or contradicted, in support of the correctness and good faith of the recitals of the instrument of sale. This being so, we have no alternative but to determine the issue of price in favour of the respondents. The appellant therefore will get a decree, entitling him to purchase the shares sold in the villages mentioned above, on condition of his paying for them the sale-deed prices within thirty days from the date when this decree shall have been certified in the Court below. Failing to make such payment, his suit will stand dismissed.
5. The appeal thus stands decreed, with costs proportionate to the success of the parties respectively.