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Lakhmi Das Vs. Mt. Badla and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All807
AppellantLakhmi Das
RespondentMt. Badla and ors.
Excerpt:
.....those transfers in good faith. even if it be supposed that they could be expected to know that khwaja bux had a right to ignore the sale-deed by karima, as being a sale by an unauthorized person, they were perfectly justified in also assuming that khwaja bux, not having impeached that sale, acquiesced in and accepted the same. 10. in the bombay case referred to above, it was held that a suit to recover possession is not the same thing as a suit to redeem, and a mortgagor's right to redeem, the period of limitation for which is 60 years under article 148, will not be defeated merely because his mortgagee transfers the mortgage to another person. 12. for the reasons given above, in my judgment, the decisions of the courts below are perfectly correct, and i dismiss the appeal with costs......of four persons named bhojraj, mohan lal, hukum chand and parmanand, for a sum of rs. 450. the property mortgaged consisted of four kachcha shops. imam bakhsh, the mortgagor, died sometime before the year 1867, leaving as his heirs his son khwaja bux and a daughter (whose name is not known). khwaja bux died about 2 years prior to the institution of the suit leaving, as his sole heir his son rahim bakhsh. the plaintiff purchased the equity of redemption from rahim bux under a sale-deed dated the 15th november 1921, for a sum of rs. 1,000. on the findings of the courts below, it is abundantly clear, that the plaintiff paid no consideration for the sale, and obtained a sale-deed only with a view to gamble in litigation. however, this fact alone would not disentitle the plaintiff to a.....
Judgment:

Iqbal Ahmad, J.

1. This is an appeal by the unsuccessful plaintiff in a redemption suit. The mortgage, sought to be redeemed, was executed by one Imam Bakhsh, on the 17th November 1861, in favour of four persons named Bhojraj, Mohan Lal, Hukum Chand and Parmanand, for a sum of Rs. 450. The property mortgaged consisted of four kachcha shops. Imam Bakhsh, the mortgagor, died sometime before the year 1867, leaving as his heirs his son Khwaja Bux and a daughter (whose name is not known). Khwaja Bux died about 2 years prior to the institution of the suit leaving, as his sole heir his son Rahim Bakhsh. The plaintiff purchased the equity of redemption from Rahim Bux under a sale-deed dated the 15th November 1921, for a sum of Rs. 1,000. On the findings of the Courts below, it is abundantly clear, that the plaintiff paid no consideration for the sale, and obtained a sale-deed only with a view to gamble in litigation. However, this fact alone would not disentitle the plaintiff to a decree, if Rahim Bux had a subsisting right to the equity of redemption, on the date of the sale-deed executed by him, in the plaintiff's favour.

2. It is admitted on all hands that, on the 5th February 1867, one Karima, purporting to act as guardian of Khawaja Bux sold the equity of redemption in all the four shops to the four mortgagees named above. It has been found by the lower appellate Court that the sale-deed was executed by Karima for the benefit of Khwaja Bux, and that Khwaja Bux acquiesced in the same and never challenged the same, though he lived for a period of more than 50 years after the date of that sale. Thereafter the mortgagees, according to the finding of the lower appellate Court, all along regarded themselves as owners of the mortgaged property, and on the 5th September 1892, the property was divided by the mortgagees, or their heirs amongst themselves. On the 17th October 1894, two out the four shops in dispute, were transferred by the heirs of one of the mortgagees, viz, Hukum Chand to one Mt. Khanu, and the same passed by right of inheritance to Mt. Badla defendant 1. Mt. Badla transferred the two shops to her daughter Mt. Nanhi defendant 9, under a deed of gift dated the 8th June 1920. The remaining two shops were sold by the remaining mortgagees or their heirs, to the father of defendants 2 to 5 on the 16th July 1909. The transferees rebuilt pucca shops in place of the kachcha shops originally mortgaged.

3. It has been found by the lower appellate Court that Khwaja Bux was well aware of the sale of the equity of redemption in the year 1867, and that the mortgagees thereafter were dealing with the property as owners, and Khwaja Bux never questioned their right to do so. After all these transfers were made in favour of the persons, who have been found by the lower appellate Court to be bona fide transferees for value, the present suit has been brought by a speculator for possession of the four pucca shops, by redemption of the mortgage of 1861, on payment of Rs. 450. The plaintiff had not even the grace to offer to pay to the transferees, the consideration paid by them for the sales in their favour and the amount spent by them in reconstructing the shops.

4. The defence to the suit was that, by the sale-deed of 1867, the equity of redemption passed from Khwaja Bux to the mortgagees and, as such Rahim Bux had no right left in the mortgaged property which he could transfer to the plaintiff, and that the suit was barred by Section 41, Transfer of Property Act, and by Article 134, Limitation Act. All the pleas urged in defence have been accepted by both the Courts below, and the suit has been dismissed.

5. It is argued that Karima had no right to transfer the equity of redemption, as guardian of Khwaja Bux and that the sale by him was absolutely void. This contention is perfectly sound. [vide Imambandi v. Mutsaddi A.I.R. 1918 P.C. 11.] It is then argued that the sale by Karima being void, the estate of the mortgagees was not enlarged, nor did their possession become adverse to Khwaja Bux, and that the equity of redemption all along remained vested in Khwaja Bux, and in support of this argument reliance has been placed by the learned Counsel for the appellant on the case of Mata Din v. Ahmad Ali [1912] 34 All. 213. I am unable to agree with this contention. In the case relied on by the learned Counsel for the appellant, it was found, as a fact, that the sale of the equity of redemption, by the de facto guardian of the minor, was not acquiesced in by the minor on attaining majority. In this case the finding of the lower appellate Court is the other way. The lower appellate Court has found that.

Khwaja Bux admitted the said sale-deed (of 1867) to be valid and to be binding on him.

6. Moreover, in the case cited by the learned Counsel, the suit for redemption was brought within 12 years of the date of the accrual of the cause of action, and it was held, by their Lordships of the Privy Council, that the suit was not barred by Article 144, Sch. 1, Limitation Act.

7. In the present case the mortgage was not for a fixed period, and as such the mortgagor had a right to institute a suit for redemption at any time after the date of the execution of the mortgage-deed, and the present suit was filed long after the expiry of 12 years from the date of the accrual of the cause of action to institute a suit for redemption of the mortgage in dispute. If the mortgage is for a fixed period, a suit for redemption cannot be brought within the period for which the mortgage is made, and in that case, the alienation of the equity of redemption by an unauthorized person, acting as a de facto guardian of a minor, does not set the time to run against the minor, till the date of the expiry of the period fixed by the mortgage, and a suit brought within 12 years of that date to question the alienation and for the redemption of the mortgage is not time-barred. But in the present case, a much longer time elapsed, after the date of the unauthorized alienation, and of the accrual of the cause of action for a suit for redemption of the mortgage, before the present suit was filed, and as such the case relied upon by the learned Counsel for the appellant does not help him.

8. Further, it appears to me, that the Courts below were right in holding that the suit was barred by Section 41, Transfer of Property Act, and by Article 134, Sch. 1, Limitation Act. It is clear, from the finding of the lower appellate Court, that the mortgagees, after the sale of 1867, were dealing with the property as their own property, and were the ostensible owners thereof. They had paid consideration for the sale-deed of 1867, and that sale was never questioned by Khwaja Bux. They divided the property amongst themselves as owners in 1892. The transfers of 1894 and 1909 made by them or their heirs, in favour of the predecessors-in-title of defendants 1 to 5, were transfers for consideration, and the transferees took those transfers in good faith. In short all the conditions necessary to invite the application of Section 41, Transfer of Property Act, were fulfilled in the present case, and the defendants were entitled to the benefit of that section. Then again the case fulfills the requirements of Article 1S4, Limitation Act. The transfers, in favour of the predecessors-in-title of defendants 1 to 5, were transfers for valuable consideration, of full proprietary rights by mortgagees, more than 12 years prior to the institution of the suit, and as such the suit was barred by that Article.

9. But it is argued that, as in the sale-deeds of 1894 and 1909, a reference was made to the sale-deed executed by Karima in the year 1867, the transferees, under the two first mentioned deeds, must have known that the sale of 1867, being by an unauthorised person, was ineffectual to pass the equity of redemption from Khwaja Bux to the mortgagees, and as such it is said that the transferees of 1894 and 1909 must be presumed to have been aware of the fact, that what their transferrers had a right to transfer was only the mortgagee right, and not full proprietary right, and that being so, Article 134, Limitation Act, has no application. In support of this argument reliance is placed on Panna Lal v. Rameshar Sahai [1915] 29 I.C. 403, Dirgpal Singh v. Kallu_ [1915] 37 All. 660 Abdullah v. Shamsul Haq A.I.R. 1921 All. 262, Vishvanath Bhiva Raul v. Tukaram Vithu A.I.R. 1925 Bom. 417 and Taramiya v. Shibelisahib [1920] 44 Bom. 614. The first four cases are an authority for the proposition that, a person, who purchases with full knowledge and his vendor's title is merely that of a mortgagee is not entitled to the benefit of Article 134, Sch. 1, Limitation Act. In all those cases the finding was that the transferees from the mortgagees had actual knowledge of the fact that their vendors' title was merely that of a mortgagee, and they did not believe that they were purchasing an absolute interest. But, in the case before me, the finding is that every one concerned knew and had reason to believe, that the mortgagees became full owners of the property mortgaged, because of the sale of 1867. It is not the case here that predecessors-in-title of defendants 1 to 5 took the transfers with the knowledge that their transferrers had only a mortgagee's interest in the shops in dispute. Even if it be supposed that they could be expected to know that Khwaja Bux had a right to ignore the sale-deed by Karima, as being a sale by an unauthorized person, they were perfectly justified in also assuming that Khwaja Bux, not having impeached that sale, acquiesced in and accepted the same.

10. In the Bombay case referred to above, it was held that

a suit to recover possession is not the same thing as a suit to redeem, and a mortgagor's right to redeem, the period of limitation for which is 60 years under Article 148, will not be defeated merely because his mortgagee transfers the mortgage to another person.

11. If it was intended to lay down by that case, that notwithstanding the transfer of full proprietary interest by the mortgagee claiming as absolute owner, the operation of Article 134, Limitation Act, can be avoided by the mortgagor by framing the suit as a suit for redemption, I with all respect am unable to agree with that decision. A suit for redemption of a mortgage with possession is essentially a suit for possession. The decree in such a suit directs delivery of possession of the mortgaged property to the mortgagor on certain conditions. The relief that he seeks by such a suit is the relief to be put back in possession of the property mortgaged. It appears to me, therefore, that a transferee for value from a mortgagee, who has taken that, which is de facto a mortgage, upon a representation made to him, and in the full belief that it is not a mortgage, but an absolute title, is entitled to the benefit of Article 134, Limitation Act, though the suit is a suit for redemption of the mortgage.

12. For the reasons given above, in my judgment, the decisions of the Courts below are perfectly correct, and I dismiss the appeal with costs.


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