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Kalian Mal Vs. Ram Kishen and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1899)ILR21All163
AppellantKalian Mal
RespondentRam Kishen and ors.
Excerpt:
regulation no. i of 1877 (ajmere courts), section 18 et seqq. - reference by commissioner of ajmere--powers of high court--jurisdiction. - - if they fail to establish either of these conditions, they fail to bring themselves within the protection of article 134. we have had the sale deed translated and have heard arguments upon its terms, and we are unable to discern in that document any single provision or any single expression which would be applicable only to a sale of full proprietary interest. we are satisfied then that the defendants cannot claim the benefit of article 134. 2. we have been invited by mr......transferred. it is to be observed that the vendees set up a protection limiting the mortgagor's right of suit to 12 years in place of the period provided by article 148, which is 60 years. it is manifest, and there is abundant authority for the proposition, that it is incumbent upon them to bring themselves strictly within the provision of article 134. they must first of all show that the document which confers title upon them is one which purports to convey an absolute proprietary right, and they must then show that an absolute proprietary right, and nothing less is what they believed that they were buying. if they fail to establish either of these conditions, they fail to bring themselves within the protection of article 134. we have had the sale deed translated and have heard.....
Judgment:

Blair and Burkitt, JJ.

1. This matter comes before us upon a reference by the Commissioner and District Judge of Ajmere under the provisions of Section 18 of Regulation No. I of 1877. By that Regulation the Commissioner is empowered to ask from this Court a ruling upon a question of law, or, amongst other things, upon the construction of any document. The point at issue is a narrow one. The plaintiff' in the suit is the representative of a mortgagor who mortgaged with possession a house and its appurtenances in suit in 1828. Several documents purporting to be sub-mortgages with possession were executed. In the series of mortgagees and sub-mortgagees and assignees the defendants in the suit are the last. Their names are Ram Kishen and Kishori Mal. To the mortgagor's suit for redemption they set up the protection of Article 134, Schedule II of Act No. XV of 1877. It was contended on behalf of the plaintiff that the case fell within the operation, not of Article 134, but of the general rule provided for by Article 148 of the same Act. Article 134 is in the following words: 'To recover possession of immovable property conveyed or bequeathed in trust, or mortgaged, and afterwards purchased from the trustee or mortgagee for a valuable consideration.' The question put to this Court is, whether the transfer made to the present defendants by their predecessor in title, Raj Mal, as evidenced by the deed dated the 9th of April 1883, was a sale of proprietary rights, or only an assignment of the limited rights held by the vendor in the property transferred. It is to be observed that the vendees set up a protection limiting the mortgagor's right of suit to 12 years in place of the period provided by Article 148, which is 60 years. It is manifest, and there is abundant authority for the proposition, that it is incumbent upon them to bring themselves strictly within the provision of Article 134. They must first of all show that the document which confers title upon them is one which purports to convey an absolute proprietary right, and they must then show that an absolute proprietary right, and nothing less is what they believed that they were buying. If they fail to establish either of these conditions, they fail to bring themselves within the protection of Article 134. We have had the sale deed translated and have heard arguments upon its terms, and we are unable to discern in that document any single provision or any single expression which would be applicable only to a sale of full proprietary interest. The vendor nowhere asserts that he himself possesses such full proprietary rights. Indeed there are provisions in the document granting in express words the right to inhabit, the right to let to tenants, and the right to alienate, which would be superfluous if the preceding provisions of the document had conveyed an absolute title in full. We are satisfied then that the defendants cannot claim the benefit of Article 134.

2. We have been invited by Mr. Porter to consider the question whether the matter upon which our ruling is sought did really arise in the case. We are of opinion that we should be exceeding our functions if we entered upon such an inquiry. The provisions of the Regulation are, that a certain judicial officer may ask from us a ruling on a specific point or points of law arising out of an appeal which has been heard by him and upon which ho has expressed his own opinion. We have no roving commission to enter upon the merits of the case in any other respect.

3. Our answer to the question put to us is, that the transfer made by Raj Mal, dated the 9th of April 1883, was not a sale of proprietary rights, and can therefore only have been an assignment of the more limited rights possessed by the vendor as sub-mortgagee. The costs of this hearing will he costs in the appeal.

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? Article 148:

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Description of suit. Period of Time from which period

limitation. begins to run.

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Against a mortgagee to redeem or Sixty years When the right to redeem or to

to recover possession of immoveable recover possession accrues.

property mortgaged. Provided that all claims to redeem, aris-

ing under instruments of mortgage of

immoveable property situate in British

Burma, which have been executed

before the first day of May 1863, shall

be governed by the rules of limitation

in force in that province immediately

before the same day.

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