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Wazir Ali and anr. Vs. Ali Islam - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All386; 47Ind.Cas.833
AppellantWazir Ali and anr.
RespondentAli Islam
Cases ReferredAshfaq Ahmad v. Wazir Ali
Excerpt:
limitation act (ix of 1908), schedule i, article 148, applicability of - mortgage--redemption, suit for, by purchaser of portion of equity of redemption--limitation--mortgagee, possession of, nature of--'co-mortgagor,' who is. - - 7. for these reasons the appeal must, in our opinion, fail......the share which he purchased ultimately came to one sarju singh. in 1687, sarju singh brought a suit for redemption and got a decree for redemption of all the four mortgaged villages and obtained possession in 1891. the present appellant wazir ali ia the purchaser of the rights of sarju in gangapur and he is in possession by virtue of his purchase. in 1873 the share in gangapur was purchased at auction by kali charan, defendant no. 15, who sold it to the plaintiff on the 11th of october 1913, by virtue of this purchase the plaintiff brought the present suit on the 18th of may 1915 for redemption of gangapur as against wazir ali, who is in possession of that village. he has made other persons parties to the suit and one of these is musammat saidan bibi, the second appellant, the widow.....
Judgment:

1. This appeal arises out of a suit for redemption brought under the circumstances mentioned in detail in the judgment of the Court below. It is unnecessary to repeat all the facts and it is sufficient to say that on the 21st of December 1864 one Iradut Ullah made a usufructuary mortgage of certain shares in four villages, one of which was the village Gangapur. The present suit is for the redemption of that village The equity of redemption in one of the mortgaged villages, namely, Pul Ratni, was sold by auction and purchased by one Mazhar Ali in 1874. He sold it in 1882, and the share which he purchased ultimately came to one Sarju Singh. In 1687, Sarju Singh brought a suit for redemption and got a decree for redemption of all the four mortgaged villages and obtained possession in 1891. The present appellant Wazir Ali ia the purchaser of the rights of Sarju in Gangapur and he is in possession by virtue of his purchase. In 1873 the share in Gangapur was purchased at auction by Kali Charan, defendant No. 15, who sold it to the plaintiff on the 11th of October 1913, By virtue of this purchase the plaintiff brought the present suit on the 18th of May 1915 for redemption of Gangapur as against Wazir Ali, who is in possession of that village. He has made other persons parties to the suit and one of these is Musammat Saidan Bibi, the second appellant, the widow of Iradut Ullah, the mortgagor. The Court of first instance decreed the claim and the decree of that Court was confirmed by the lower Appellate Court.

2. The first contention raised before us on behalf of the appellants is thatthe claim is time-barred. This point is concluded by the authority of the Full Bench decision in Ashfaq Ahmad v. Wazir Ali 14 A. 1 : A.W.N. (1891) 211 : 11 A. 423 : 7 Ind. Dec (N.S) 373 (F.B). This case has been followed in subsequent cases by this Court and we as a Divisional Bench are bound by it. Following that ruling we must hold that the limitation applicable to a suit of this description is that provided by Article 148, namely, sixty years from the date on which the mortgage became capable of redemption It is contended that the word co mortgagor' should not be extended to purchasers of the equity of redemption. We are unable to agree with this contention, All persons who have stepped into the shoes of the original mortgagor are cO-mortgagors' for all purposes and, therefore, the rule laid down in the Full Bench case is applicable to the present case, which is that of a purchaser of the equity of redemption in a part of the mortgaged property.

3. The learned Counsel for the appellant referred to the case of Jai Kishen Joshi v. Budhanand Joshi 34 Ind. Cas. 244 : 14 A.L.J. 41 : 38 A. 138. That case so far from helping him seems to us to be against his contention. That case was decided on the ground that the representative of the mortgagor who had redeemed the mortgage had asserted a proprietary title and claimed adversely to the true owner. It was held that in a case of that description Article (sic) would apply but one of the learned Judges who decided the case observed as follows at page 47 Page of 14 A.L.Z.--Ed of the report:

If Jaidat had not dealt further with the property but had merely taken possession and held the the plaintiff would [under the ruling of this Court in Ashfaq Ahmad v. Wazir Ali 14 A. 1 : A.W.N. (1891) 211 : 11 A. 423 : 7 Ind. Dec (N.S) 373 (F.B)] have had a period of sixty years from the date of the mortgage of 1860 within which to recover his share from Jaidat on payment of his share of the debt.

4. We are accordingly of opinion that the Court below was right in holding that the limitation applicable to the case was that provided by Articla 148 and that the suit was not barred by limitation.

5. It was next contended that the suit should be deemed to be one for a declaratory decree as regards the title of the plaintiff or his vendor Kali Charan. This contention if, in our opinion, (sic) as the suit is not for a declaratory decree but for consequential relief, namely, redemption of the mortgage and possession of the property. For the purpose of maintaining the suit it was necessary for the plaintiff to ask the Court to declare his title.

6. The last contention put forward was that as Kali Charan did not bring a suit to assert his title within twelve years of the date of his purchase, that title must be deemed to have become extinct. This contention has no force inasmuch as Kali Charan had no occasion to bring a suit to establish his title. The mortgagee was in possession and the possession of the mortgagee must be deemed to be that of the person entitled to the equity of redemption.

7. For these reasons the appeal must, in our opinion, fail. We dismiss it with costs.


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