1. This is a reference by the Local Government under Rule 17 of the Rules and Orders relating to the Kumaon Division, 1894.
2. One Debi Dat Joshi had four sons: (1) Krishna Nand, (2) Yangya Dat, (3) Narotain, (4) Jai Dat, defendant No. 2. The first is dead and his son Chandramani has also died without issue.
3. The plaintiff, Jai Krishna, is the son of the second son. The third has died without issue. Jai Dat, defendant No. 2, is the fourth.
4. The property now in suit is part of the family property. On 13th August 1860, Debi Dat Joshi gave a usufructuary mortgage of this and other property to one Debi Dat Panth for a sum of over Rs. 400.
5. After the former's death, the defendant Jai Dat repaid Rs. 100 out of the mortgage-debt to the mortgagee, who thereupon released to him the property now in suit. Jai Dat, to obtain this sum, made a similar mortgage of this same property for the sum of Rs. 100 in favour of Jai Krishna Joshi (deceased), father of defendant No. 1, Buddhi Ballabh Joshi.
6. This was on 13th December 1877, and for a period of ten years. In the deed, Jai Dat clearly stated that the mortgaged property belonged to himself, that it was his maurusi village and he owned this share; that it had been mortgaged by his father to Debi Dat Panth and as the latter was pressing for payment he, therefore, mortgaged it, in order to be able to pay off Debi Dat Panth. He agreed that when he paid off the mortgage-money he would also repay to his mortgagee whatever sum the latter had paid to Government as revenue during the running of the mortgage.
7. For nearly twenty-one years his mortgagee remained in possession as such until the 26th May 1898. On this latter date Jai Dat Joshi being unable to pay off the debt sold the property to the defendant No. 1, Buddhi Ballabh Joshi, the son of the mortgagee, for the sum of Rs. 300. Of this Rs. 236 paid off the debt and the vendor took the balance in cash. Prom that date the vendee has remained in possession until the present suit was brought in the year 1912, i.e., some fourteen years afterwards.
8. The suit is one to redeem the mortgage of 1860 created by Debi Dat Joshi and the plaintiff claims possession of the whole of the property on payment of Rs. 100. The Court of first instance decreed the claim on payment of Rs. 328-8-6. The Courts of first and second appeal dismissed the suit. In the reference to this Court we are asked our opinion as to (1) whether or not the case should be remanded to the Court of first appeal for re-decision of the appeal as that Court has failed to decide the issue whether Jai Dat Joshi had a right to represent the joint family or not; (2) the correctness or otherwise of the decision of the Court of second appeal. There has been great confusion in the pleadings in the case. In the order of reference it is assumed that the family was joint whereas in the argument before us that is a disputed fact. The defendant's case is that the family was joint and Jai Dat Joshi acted throughout as the managing member. The plaintiff's case is not clear from the pleadings in the various plaints filed. In this Court on his behalf it is stated that the family had separated but the property had not been divided.
9. No issue whatever was framed as to whether the defendant Jai Dat was or was not the managing member of the joint family. The Court of first instance assumed that the family was joint and in its finding on the fourth issue--how do the mortgage of 1877 and the sale of 1898 affect plaintiff's right of redemption'--it remarked: 'I am not satisfied that he was the manager of the joint family.'
10. Assuming for the moment that the family was joint and that Jai Dat was not the managing member, the facts are that one member of a joint family mortgaged a part of the family property in 1877, paid off a prior mortgage-debt due thereon from the family and then in 1898 sold the property to the second mortgagee who has been in possession for over twelve years.
11. As a person interested in the mortgaged property he had power to redeem the mortgage of 1860 and that mortgage no longer exists and cannot now be redeemed. There is no question of subrogation' in the matter. The second mortgagee paid his money to Jai Dat as the deed shows, and the latter paid off the first mortgagee. If the principle did at all operate it would do so for the benefit of the second mortgagee. The defendant No. 1 does not seek to stand upon the first mortgage. In the circumstances assumed it is clear that he, having purchased from a member of the family incompetent to sell, has held adversely to the joint family for over twelve years and the suit against him must fail.
12. Next, if we assume that the family was joint and that Jai Dat was its managing member, no suit for redemption of the mortgage of 1860 can lie and the defendant has clearly held adversely against the joint family since the date of his purchase. In this aspect the suit must equally fail.
13. Assuming, however, that the family was separate (though the properties had not been divided among the co-owners) other considerations arise.
14. When in 1877 Jai Dat redeemed the mortgage of 1860 he acquired a charge on the plaintiff's share for the latter's share of the debt paid (vide Section 95 of the Transfer of Property Act). This Statute no doubt was not then in force, but it did not on this point make any alteration in the law of mortgage as previously administered. If Jai Dat had not dealt further with the property but had merely taken possession and held it, the plaintiff would [under the ruling of this Court in Ashfaq Ahmad v. Wazir Ali 14 A. 1 : 11 A. 423 : A.W.N. (1891) 211 (F.B.)] have had a period of sixty years from the date of the mortgage of 1860 within which to recover his share from Jai Dat on payment of his share of the debt. Article 148 of Schedule IT of the Limitation Act of 1877 was applied by the Full Bench of this Court to a suit of such a nature, though that Article in terms applies only to a suit to redeem a mortgage; whereas Section 95 of the Transfer of Property Act shows that the co-owner redeeming merely acquires a charge which is very different from a mortgage. In any case the co-owner thus suing cannot sue to redeem the original mortgage bat only to recover his own share of the property redeemed by payment of his share of the expense. In the case before us, however, the matter is complicated by the transfer by Jai Dat, i.e., the mortgage of 1877 and the sale of 1898.
15. In the case of each of these he purported to transfer property belonging to himself and his transferee has held for thirty-one years as mortgagee and fourteen years as vendee.
16. Either Article 144 or Article 134 of the Second Schedule of the Limitation Act will apply to a suit for possession of the plaintiff's share. On behalf of the plaintiff, it is urged that he is in the position of a mortgagor suing to recover possession of property from a transferee from his mortgagee and that Article 134 would apply and, therefore, under the rulings of this Court, there must be a finding as to whether the transferree took in good faith and in ignorance of the plaintiff's rights or with a full knowledge of those rights, and, therefore, the suit should be remanded to the Court of first appeal for a finding on that question of fact. On behalf of the defendant, however, it is urged that Article 134 does not apply, as this is no case of a transfer by a mortgagee; that the decision in Ashfaq Ahmad v. Wazir Ali 14 A. 1 : 11 A. 423 : A.W.N. (1891) 211 (F.B.) can only be applied to a suit by one co-owner to redeem his share from the co-owner who has paid off the mortgagee and its principle should not be extended to Article 134, where the suit is one between the co-owner and a third person, a transferee, and that Section 95 of the Transfer of Property Act clearly shows that Jai Dat was merely a charge-holder and not a mortgagee and that Article 144 is the only Article which can and ought to apply. In my opinion, Section 95 of the Transfer of Property Act clearly shows that Jai Dat became merely a charge-holder when he paid off the mortgage of 1860. The fact that, as regards his co-owners, his position became analogous to that of a mortgagee, does not make him a mortgagee when the law clearly states that he is only a charge-holder.
17. In my opinion, Article 144 applies. The defendant-appellant, has held adversely clearly from the year 18'8. There is no question of fraud or collusion. The contending defendant has held the property some thirty-five years prior to suit as usufructuary mortgagee and vendee from Jai Dat and the plaintiff has remained silent and unquestioning. Both mortgage and sale-deed were registered. It, therefore, is clear to my mind that whether the family was joint or separate the suit was bound to fail. I would, therefore, answer the two questions as follows: 1) It is unnecessary, in the circumstances of this case, to have any finding on the question as to whether Jai Dat Joshi represented the family or not; though it is obvious that the suit could not be decreed against the defendant until a decision thereon had been reached. (2) The decree of the Commissioner is correct though perhaps not for the reasons stated by him.
18. I would order the plaintiff to pay all costs in all Courts.
19. I concur generally. It is obviously useless to remand the suit if it is barred by limitation on the facts stated by the plaintiff himself. The case for the latter is only arguable on the assumption that Jai Dat and his brothers had separated but had left the property in suit undivided. Assuming these facts, the question is whether the plaintiff can invoke the principles laid down by this Court in Ashfaq Ahmad v. Wazir Ali 14 A. 1 : 11 A. 423 : A.W.N. (1891) 211 (F.B.) so as to save limitation. The point may be stated thus : 'If the holder of a charge under Section 95 of the Transfer of Property Act (No. IV of 1882) is in possession of the property which is the subject of that charge, what is the limitation applicable to a suit by the owners of the said property for recovery of possession on payment of the charge?' The question is not free from difficulty and the view taken by this Court has not been universally accepted. The operation of Article 144 of the Schedule to the Indian Limitation Act can only be avoided by bringing the case under the operation of some other Article of the Schedule. If Article '. 44 be applied, then the further question would arise as to the circumstances under which the possession of the charge-holder becomes adverse to that of the owners. This Court saw a way out of the difficulty by laying down the principle that the possession of the charge-hulled should be regarded as that of the original mortgagee, the provisions of Article 148 of the Schedule to the Limitation Act being applied so as to permit the owners to sue for possession by redemption of the charge within sixty years of the date of the original mortgage. The question then before the Court was one of limitation only; it was not laid down that the possession of the charge-holder should be regarded as in all respects equivalent to the possession of a mortgagee That point was not considered at all. In the present case the charge-holder has been claiming title in himself adversely to the persons whom we must, for the sake of argument, regard as the true owners, ever since he redeemed the original mortgage. He has himself transferred the property in suit, first by way of mortgage and then by way of sale. The present suit is not against the alleged charge-holder only, but principally against his transferee. It seems to me obviously impossible to apply the provisions of Article 148 to the present suit; nor is such application necessitated by any principle laid down in the case of Ashfaq Ahmad v. Wazir Ali 14 A. 1 : 11 A. 423 : A.W.N. (1891) 211 (F.B.). It follows that the present suit can only be saved from the operation of Article 144 by bringing it under Article 134. On this point I have felt some doubts. It is very difficult to apply Article 134 on its strict wording; the only doubt in my mind is whether the learned Judges who decided the case of Ashfaq Ahmad v. Wazir Ali 14 A. 1 : 11 A. 423 : A.W.N. (1891) 211 (F.B.), would not have regarded its application as a legitimate extension of the principle which they laid down as to the charge-holder's stepping into the shoes of the original mortgagee. On the whole, I think it sufficient to say that I am not prepared to dissent from the view taken by my learned colleague. For one thing I do not think it worth while to do so on the facts of the present case; the application of Article 134 might necessitate a remand for a further finding as to the bona fides of the transferee-defendant and the payment of consideration, but I do not feel any serious doubt that it would result in the dismissal of the suit. Accepting Article 144 of the Schedule as the proper Article to be applied, I can feel no doubt whatever that the possession of the principal defendant has been adverse to the plaintiff for more than the statutory period of twelve years. I concur, therefore, in answering the reference as proposed by my learned colleague.