1. I have stated the facts of this case at some length in my remand order of July the 3rd 1914. The finding of the lower Appellate Court on the remanded issue puts it beyond question that the plaintiff is the successor-in-interest of the original mortgagor. The essential facts may, therefore, be recapitulated. On the 24th of January 1867 the predecessor-in-title of the present plaintiff mortgaged by conditipnal sale a house in the town of Chandausi to one Hazari Lal and put him in possession. On June the 15th, 1873, Hazari Lal sold this shop to Panna Lal, the defendant-appellant. There had been no foreclosure of the mortgage by conditional sale. In the deed of June the 5th, 1873, Hazari Lal recited that the shop in question had come into his possession under a mortgage by conditional sale, but that he was now in possession as a full owner. He did not say that he had foreclosed the mortgage. He undoubtedly purported to sell the shop itself and not any mortgagee rights in respect of the same. The lower Appellate Court has found that the vendee, Fanna Lal, did not in fact believe that his vendor had power to convey an absolute interest in the shop.
2. I must pause to note that this finding is challenged in argument on behalf of the appellant. It is contended that it was not fairly open to the lower Appellate Court to arrive at this finding. The learned Subordinate Judge held that the very recital in the sale-deed of 1873 was calculated to put the vendee on his guard, that the vendee made no sort or kind of inquiry but went into the transaction with eyes shut. He has, however, gone further than this. Relying partly on the wording of the document and partly on certain facts and circumstances regarding the location of the shop, residence of the parties and so on, and partly on certain oral evidence, he has come to the conculsion that, when the vendee chose to accept his vendor's assertion that he was in full proprietary possession of the shop, he had good reason for believing that this assertion was not true, and did not in fact believe it to be true. Sitting as a Court of second appeal, I am not prepared to hold that the lower Appellate Court had not before it materials on which it was entitled to arrive at the above finding.
3. If this finding cannot be disturbed, it seems to me that, according to a long course of decisions in this Court, this suit for redemption must succeed and the plea of limitation set up by the defendant-appellant must be overruled. I refer to Bhagwan Sahai v. Bhagwan Din 9 A. 97 : A.W.N. (1886) 303; Kampta Prasad v. Bakar Ali A.W.N. (1881) 122 and Husaini Khanam v. Husain Khan 29 A. 471: A.W.N. (1907) 133 : 4 A.L.J. 375. It has been contended on behalf of the appellant that these decisions are inconsistent with later opinion in this Court itself. On this point reference is made to the case of Bchari Lal v. Muhammad Muttaki 20 A. 482 : A.W.N. (1898) 123. I have also been referred to a case decided elsewhere by one of the learned Judges of this Court, namely Dal Singh v. Gur Prasad 2 Ind. Cas. 250 : 12 O.C. 84 and it has been contended that the same learned Judge has recently re-affirmed the view taken by him in Oudh in an uureported decision in Second Appeal No. 547 of 1914 pronounced by him on March 11, 1915. Further, I have been asked to consider that the current of decisions of this Court with regard to the application of Article 134 of the first Schedule to the Limitation Act (IX of 1908) is inconsistent with the opinions pronounced by other High Courts. There would certainly appear to be a clear consensus of opinion to the contrary in the Bombay High Court, reference being made to Baiva Khan Daud Khan v. Bhiki Sabza 9 B. 475; Yesu Ramji Kalnath v. Balkrishna Lakshman 15 B. 583; Pandu v. Vithu 19 B. 140 and Ramchandra v. Sheikh Mohidin 23 B. 614. Other cases to which I have been referred in argument may be found reported as Ram Kanai Ghosh v. Raja Sri Sri Hari Narayan Singh Deo Bahadur 2 C.L.J. 546 and Chettokulam Prasanna Venkata-chela Reddiar v. Collector of Trichinopoly 24 Ind. Cas. 369 : (1914) M.W.N.587 : 26 M.L.J. 537. Finally it was suggested that the latestdecision of this Court relied uponon behalf of the plaintiff-respondent, namely, that in Husaini Khanam, v. Husain Khan 29 A. 471: A.W.N. (1907) 133 : 4 A.L.J. 375 proceeds upon a view as to the effect of a mortgage by a trustee or a mortgagee amounting to a 'purchase' within the meaning of Article 134 of the first Schedule to the Limitation Act, or I should say to a transfer of the property in question within the meaning of the same Article as it appears in Act IX of 1908, and is inconsistent with the pronouncement of their Lordships of the Privy Council in Abhiram Goswami Mohant v. Shyama Charan Nandi 4 Ind. Cas. 449 : 6 A.L.J. 857 : 14 C.W.N. 1 : 11 Bom. L.R. 1234 : 19 M.L.J. 530 : 10 C.L.J. 284 : 36 C. 1003.
4. With regard to a good deal of this argument I think it is sufficient to say at present that, although the Article of the Limitation Act in question refers to transfers both by trustees and by mortgagees, it may well be that by reason of the provisions of the Transfer of Property Act (IV of 1882) different considerations may govern the application of this Article in cases where a transfer has been made by a trustee or by a mortgagee respectively. On this point I desire to add a few words presently. I mention it merely for the sake of noting that the Calcutta and Madras cases to which I have referred above were both cases of transfer by trustees. For the same reason I find nothing of the decision of Behari Lal v. Muhammad Muttaki 20 A. 482 : A.W.N. (1898) 123 to conflict with the course of decisions of this Court governing transfers by mortgagees. All the older cases of this Court relied upon by the present respondent are not even referred to, much less overruled,.by the Full Bench which decided Behari Lal v. Muhammad Muttaki 20 A. 482 : A.W.N. (1898) 123. It seems to me, therefore, that I might content myself with saying that I have before me at least three reported cases, each decided by a Bench of this Court, in favour of the respondent's contention that the present suit is not, upon the findings arrived at by the lower Court, barred by limitation. Sitting as a single Judge of this Court I am bound by the decisions above referred to.
5. I desire, however, as the matter has been fully argued before me, to place on record my opinion that the decision which I propose to pass may be supported independently of the authorities above referred to, by a line of reasoning somewhat different to that which has been followed by other learned Judges of this Court. The suit as brought is against the legal representatives of the original mortgagee and against Panna Lal as transferee of the mortgagee rights. It is on the face of it a suit for redemption of a mortgage and governed by the provisions of Article 148 of the first Schedule to the Indian Limitation Act (IX of 1908). Such a suit is undoubtedly maintainable within the prescribed period of sixty years, against either a mortgagee or any transferee of mortgagee rights. When, therefore, the defendant Panna Lal pleads that the suit as against him is barred by limitation by reason of the provisions of Article 134 of the first Schedule to the Limtiation Act, it seems to me that his pleading requires some further analysis. He must be taken to plead that he is not a transferee of the mortgagee rights, but a person who has somehow come into possession of the property in suit, and that his possession can only be disturbed by means of a suit for ejectment. Now it is quite conceivable that, in a case like the present, the original mortgagor (or his successor-in-interest) might have gone to the original mortgagee (or his successors) and redeemed the mortgage out of Court, receiving in return a full discharge of the mortgage-debt and the mortgagee's claims. If, after having done this, he found himself obstructed by the defendant Panna Lal in his attempt to enter into possession of the mortgaged property, any suit which he might bring against Panna Lal would clearly be a suit for recovery of possession of the kind contemplated by Article 134 already mentioned. Whatever view might be taken as to the meaning of that Article, it could not be denied that the suit was governed by it. In the present case the controversy in reality is whetfter Article 134 applies at all. The answer to this question must depend on whether Panna Lal is a transferee of the mortgagee rights or is simply a person who has come into possession of the property in suit under a title adverse to that of the original mortgagor.
6. I venture to suggest that on this view of the case three possible contentions are open: (1) It might be said that the Court will not go beyond the terms of Panna Lal's document of title. He holds what purports to be a sale-deed of the property out and out. Therefore, he cannot be treated as a mere transferee of the mortgagee rights. The suit as against him would, therefore, not be a suit for redemption at all, but a suit for recovery of possession. (2) It might be contended that the Court will not go behind the actual status of the parties to the transaction embodied in the sale-deed of June 5th, 1873 : or the legal effect of the said deed. The vendor under that deed purported to convey something which he did not possess, namely, full proprietary rights in respect of the house in suit. He did, however, possess some rights in respect of the house, namely, mortgagee rights. The legal effect of the deed, therefore, would be to convey to the transferee whatever rights Hazari Lal possessed at the time of the transfer. Those rights being rights of a mortgagee, Panna Lal became in law a transferee of the mortgagee rights. A suit for redemption will, therefore, lie as against Panna Lal and the period of limitation for such a suit is sixty years. (3) The case may be looked at from the point of view which has been actually taken in the reported decisions of this Court which I am prepared to follow. If it had been found that Panna Lal entered into possession of the house in dispute under the sale-deed of June 5th, 1873, in the honest belief that he had obtained full proprietary rights in the said house by reason of that deed, and with the obvious and avowed intention to exercise the rights of a full proprietor, he would, under this view of the case, be entitled, as the learned Judges of this Court said, to the 'protection' of Article 134 aforesaid. In effect, as it seems tome, this view of the case involves holding that Panna Lal's possession became adverse against the owner of the equity of redemption from the date of the sale in his favour.
7. On either of the last two views the suit as brought is within time. I do not desire to discuss the matter further, beyond remarking that, if the learned Judges who have accepted the first of the views sat forth above with regard to the operation of Article 134 of the first Schedule to the Indian Limitation Act are right in the interpretation which they have put on the words of that Article, considered by themselves, it seems to me that a conflict of principles becomes involved between the provisions of that Article and those of Section 60 of the Transfer of Property Act (IV of 1882). A mortgagor's right to redeem subsists until it has been extinguished by act of parties or order of a Court. Act of parties must mean act of the parties to the mortgage transaction. I take it to be settled law that no assertion of adverse title on the part of a mortgagee during the continuance of a mortgage could set time running against the mortgagor so as to deprive the latter of his right to redeem within a period of sixty years. The sale by Hazari Lal in favour of Panna Lal was, so far as the vendor was concerned, simply an assertion of adverse title as against the mortgagor. This, I take it, could not operate so as to extinguish his right to redeem, or set time running against the mortgagor. If anything can be held to have set time running against him, it must be Fauna Lal's entry into possession under the terms of the sale-deed in his favour. Now assuming for the sake of argument that the present suit had been brought within twelve years of the sale of June the 5th, 1873, it is worth while to consider what sort of suit the mortgagor would have been bound to bring. Tf he had sued Panna Lal for ejectment as a trespasser he would most undoubtedly have been met by a plea that if Panna Lal took nothing else under this sale-deed he had at least acquired Hazari Lal's rights as a mortgagee, and that the suit against him should be one for redemption and not for ejectment. Yet if the view which seems to have been taken by the Bombay High Court regarding the operation of Article 134 to the first Schedule of the Limitation Act is correct, it would seem to follow that, if the mortgagee in possession chose, even on the very day after entering into possession, to execute a deed purposing to sell the property itself, and not his mortgagee rights therein, to a third party, he could thereby compel the mortgagor to sue for redemption within twelve years of the sale, or to lose his rights by operation of the law of limitation. I find it very difficult to believe that this is either the intention of the Legislature or the effect of the provisions of the law which I have been considering. The result is that I dismiss this appeal with costs, including fees on the higher scale.