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Nura Bibi Vs. Jagat NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All295
AppellantNura Bibi
RespondentJagat NaraIn and ors.
Excerpt:
.....redemption--act iv of 1882 (transfer of property act), sections 95, 100--limitation--act xv of 1877 (limitation act), schedule ii, nos. 134, 148--burden of proof. - - mittra's excellent work on limitation; such a suit naturally falls within the definition of article 148 of act xv of 1877, and we fail to appreciate how it is possible for one of two mortgagors, redeeming the whole mortgaged property behind the book of the other, to change the position of that other to something less than that of a mortgagor, or to abridge the period of limitation within which he ought to come in to redeem. 85. we assume that notice was given to the defendants by the plaintiff to produce the mortgage-deed, and that they failed to do so, and under these circumstances very slight evidence would have been..........of the transfer of property act, which declares that 'where one of several mortgagors redeems the mortgaged property and obtains possession thereof, he has a charge on the share of each of the other co-mortgagors for his proportion of the expenses properly incurred in so redeeming and obtaining possession.' what that charge carries with it is explained in section 100 of the same statute, which says that, where 'by operation of law the immoveable property of one person is made security for the payment of money to another, all the provisions hereinbefore contained as to a mortgagor shall, as far as may be, apply to the owner of such property, and the provisions of sections 81 and 82 and all the provisions hereinbefore contained as to a mortgagee instituting a suit for the sale of the.....
Judgment:

Straight, Offg. C.J. and Tyrrell, J.

1. We think the lower Courts were right in holding that the period of limitation applicable to a suit of this nature is that provided by Article 148 of Act XV of 1877. It was so decided by Pontifex, J., in an unreported Calcutta case mentioned on page 162 of Mr. Mittra's excellent work on Limitation; and our only difficulty is a Full Bench ruling of this Court in Umrunnissa v. Muhammad Yar Khan I.L.R. 8 All. 24 which at first sight appears to be at variance with this view. Upon examination, however, it will be seen that the applicability of Article 148 to the facts of that case was never raised or considered, the arguments and ratio decidendi being confined to the question of whether, assuming Article 144 to supply the limitation, there had been adverse possession on the part of the defendants which would defeat the plaintiff's suit. It was held that there had not; but beyond this the decision did not and could not go, and the point now before us may therefore be regarded as res integra. In the ruling of Pontifex, J., above adverted to, that learned Judge speaks of the co-mortgagor who redeems the entire mortgage as 'standing in the shoes of the mortgagee' in respect of such portion of the redeemed property as belongs to the other mortgagor, and this Bench decided much to the same effect in Pancham Singh v. Ali Ahmad I.L.R. 4 All. 58. The equitable principle recognised in these rulings is now embodied in Section 95 of the Transfer of Property Act, which declares that 'where one of several mortgagors redeems the mortgaged property and obtains possession thereof, he has a charge on the share of each of the other co-mortgagors for his proportion of the expenses properly incurred in so redeeming and obtaining possession.' What that charge carries with it is explained in Section 100 of the same statute, which says that, where 'by operation of law the immoveable property of one person is made security for the payment of money to another, all the provisions hereinbefore contained as to a mortgagor shall, as far as may be, apply to the owner of such property, and the provisions of Sections 81 and 82 and all the provisions hereinbefore contained as to a mortgagee instituting a suit for the sale of the mortgaged property shall, so far as may be, apply to the person having such charge.' We only refer to these provisions, which cannot govern the mortgage in the present case, which was long antecedent to the Transfer of Property Act, by way of analogy; but applying the equitable principle that they adopt, the effect is the same, namely, that the owner of a portion of a mortgaged estate, which has been redeemed by his co-mortgagor and in its entirety, has the right to redeem such portion from his co-mortgagor, and a suit brought for that purpose will be in the nature of a suit for redemption. Such a suit naturally falls within the definition of Article 148 of Act XV of 1877, and we fail to appreciate how it is possible for one of two mortgagors, redeeming the whole mortgaged property behind the book of the other, to change the position of that other to something less than that of a mortgagor, or to abridge the period of limitation within which he ought to come in to redeem.

2. The only remaining question is as to whether the learned Judge rightly held the burden of proof to be on the plaintiff. The defendant is admittedly in possession, and, in our opinion, though the existence of a mortgage as the origin of such possession was conceded by him, it lay upon the plaintiff to give prime facie proof of the subsistence of that mortgage at the date of suit--Kishan Dutt Ram v. Narendar Bahadoor Singh L.R. 3 Ind. Ap. 85. We assume that notice was given to the defendants by the plaintiff to produce the mortgage-deed, and that they failed to do so, and under these circumstances very slight evidence would have been sufficient to satisfy the obligation which lay on the plaintiff. But she produced none; and though offered an opportunity to bring forward further evidence, her pleader declined to do so. Under these circumstances, we think the learned Judge below was right, and the appeal is dismissed with costs.


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