1. This is an appeal from a decree of the Judge of Jaunpur, reversing a decree of the Subordinate Judge of Jaunpur, and decreeing the plaintiff's (respondent's) suit for the recovery from the estate of Kazi Ahmad Husain, in the hands of the Kazi's heirs, the defendants for appellants), and from the profits of taluka Dandari, of Rs. 1,129-10-0, with costs and future interest.
2. The facts may be thus stated: Chatku Misr acted as karinda of Kazi Ahmad Husain for the management of taluka Dandari, and the Kazi was in the habit of taking advances of money from him. On the 2nd October 1874 Rs. 271 were found to be due to Chatku Misr. On that date the Kazi took a further loan of Rs. 300 in cash, and executed in favour of his creditor a bond by which he covenanted as follows:
I mortgage usufructuarily to the aforesaid karinda my entire right and share in taluka Dandari, in lieu of the aforesaid amount (Rs. 571-1-0), that he may realise the same from the profits of the year 1282 fasli, and from the arrears due by the tenants during the time of his incumbency, the liability for which he has accepted. On a settlement of accounts, should any money be found to remain due after deduction of the aforesaid amount, he may recover it from the profits of the year 1283 fasli. As soon as it is recovered, the mortgage possession will cease, and no excuses or pretexts will be allowed.
3. The Court of First Instance (Subordinate Judge) held that the suit ought to have been brought within six years from the end of 1283 fasli (3rd September 1876) and dismissed it as time-barred.
4. The finding of the Lower Appellate Court was in the following terms:
Plaintiff' says the mortgage-money was not redeemed by the end of 1283 fasli, and that he was evicted on the 14th November 1876, after the end of the fasli year 1283, which finished on the end of Bhadon, i.e., 3rd September 1876, that is to say, that plaintiff' remained in possession for nearly six weeks after the end of the fasli year 1283, I think that Article 132, Schedule ii of the Limitation Act is applicable. It is clear that the mortgagor mortgaged his rights and interests: 'Tamam wakamal hak wa hissa rahn pat bandhak karte hain.' I do not find that he mortgaged merely the profits. The explanation that the plaintiff may realise the mortgage-money from the profits of 1882 and 1883 is superfluous; if he were not to realise from the profits, what else could he realise from? And plaintiff was put in possession, I think the suit is not barred by limitation. The limitation is twelve years by Article 132.
5. It is contended in second appeal that the suit is time-barred, as not having been instituted (Article 116, Schedule ii, Act XV of 1877) within six years from the 3rd September 1876; and, in support of this contention, Dulli v. Bahadur N.W.P.H.C. Rep. 1875 p. 55 is cited. To which it is replied on behalf of the respondent:
(a) That the bond of the 2nd October 1874, created a charge upon immoveable property, and that Article 132, not Article 116 of Schedule ii, Act XV of 1877,is therefore the limitation law applicable.
(b) That even if Article 116 be the limitation law applicable, the suit is still within time, having been instituted on the first day on which, after the expiry of six years from the 14th November 1876 (the date of the cause of action), the Court was open.
6. The Civil Courts were closed in 1883 from the 10th October till the 26th November, both days inclusive, and the suit was therefore instituted on the first Court day after the vacation; but this fact will not assist the respondent's case unless the 14th November, and not the 3rd September 1876, be the date of the accrual of the cause of action; or, in other words, only if, as is assumed in the plaint, but is denied by the defendants (appellants), the plaintiff (respondent) was, upon a true interpretation of the bond of the 2nd October 1874, entitled, if the loan was not previously satisfied, to retain possession of the mortgaged property after the end of the year 1283 fasli.
7. Two points therefore arise for our decision, viz.:
(1) Did, or did not, the bond of the 2nd October 1874, convey to the plaintiff (respondent) a right to hold the mortgaged property subsequently to the 3rd September 1876, if the debt should not have been previously satisfied from the usufruct?
(2) Did, or did not, the bond of the 2nd October 1874, create a charge upon immoveable property?
8. As regards the former of these points, we see no reason to doubt that the terms of the bond have been rightly interpreted by the Subordinate Judge; that the expression 'wa jis wakt pat jawe, bila hechak uzr dahkl murtahinana kaladam tasawar kiya jawe' refers to an event contemplated as occurring before, not after, the end of 1283 fasli; that no right to hold property after the 3rd September 1876, was conferred upon the plaintiff by the bond ; and that the 3rd September, not the 14th November 1876, was the date of the accrual of the cause of action.
9. As regards the latter point, we remark that the appellant's contention that the suit is not governed by the limitation provided in Article 132, Schedule ii, Act XV of 1877, does certainly receive support from the decision of a Division Bench of this Court in Dulli v. Bahadur N.W.P.H.C. Rep. 1875 p. 55 and from a judgment of Sargent, J., in Pestonji Bezonji v. Abdool Rahiman I.L.R. 5 Bom. 463. But we venture to doubt the soundness of the principle upon which the decision of the learned Judges of this Court (Pearson and Spankie, JJ.) in Dulli v. Bahadur N.W.P.H.C. Rep. 1875 p. 55 proceeded; and, the decision of Sargent, J., in Pestonji Bezonji v. Abdool Rahman I.L.R. 5 Bom. 463 has been overruled by a Full Bench decision of the Bombay Court in Lallubhai v. Naran I.L.R. 6 Bom. 719 to which Sargent, C.J., was himself a party. We follow and approve the view of the law taken by the learned Judges of the Bombay High Court in the case last cited. Their Lordships of the Privy Council in Maharana Futtehsangji Jaswantsangji v. Desai Kullianraiji Hakoomutriaji 13 B.L.R. at p. 265 ruled that the expression 'immoveable property,' as used by the Indian Legislature, comprehends certainly all that would be real property according to English law, and possibly more, 'In some foreign systems of law, ' their Lordships go on to say,' in which the technical division of property is into moveables and immoveables, as, e.g., the Civil Code of Prance, many things which the law of England would class as 'incorporeal hereditaments' fall within the latter category.' And effect has been given to this dictum of their Lordships in the Explanation to Article 132, Schedule ii, Act XV of 1877. Even, therefore, if the words 'the whole of my right and share in taluka Dandari,' used in the bond of the 2nd October 1874, could be treated as mere surplusage--a position which we must by no means be taken to admit--we should still be of opinion that the money borrowed by Kazi Ahmed Husain on the date in question was 'money charged upon immoveable property;' for it was undoubtedly money charged upon rents and profits in alieno solo, which, in English law, would be classed as 'incorporeal hereditaments,' but which by the law of this country are included in 'immoveable property.' We are of opinion, therefore, that the law of limitation applicable to this suit is that provided in Article 132, Schedule ii, Act XV of 1877, and that, as having been instituted within twelve years from the 3rd September 1876, it was not time-barred.
10. The appeal fails, and is dismissed with costs.