C.A. Vaidialingam, J.
1. The point that arises for decision in this Second Appeal at the instance of the plaintiff in O. S. 912 of 19-19 is a pure question of limitation.
2 The question is about the applicability or otherwise of Article 10 of the Indian Limitation Act. The further question is, if Article 10 applies, what as the starting point for the period of limitation prescribed in column 3 of Article 10. The trial court lias accepted the plaintiff's contention and come to the conclusion that there is no bar of limitation for the plaintiff's action; whereas the appellate court, on appeal, has differed from the conclusions arrived at by the trial court.
The learned Sub-Judge has come to the conclusion that the plaintiff's suit O. S. 912 of 1949) is barred by limitation under the latter part of column 3 of Article 10 of the Limitation Act, and as such has held that the plaintiff's suit for preemption is barred.
3. There was also a connected suit, tried along with the present suit O. S. 912 of 1949 and it is not necessary for the purpose of this litigation to consider the said proceedings. The present suit O. S. 912 of 1949 was filed by the plaintiff to enforce the right of pre-emption that he has got on the suit properties under the customary law of Malabar, as the ottidar thereof. There is no controversy that the plaintiff is the ottidar , of the suit property and under the customary law obtaining inMalabar, he will be entitled to enforce a right ot pre-emption.
If he is entitled to enforce a right of pre-emption, even by customary law, as in this case, there is no dispute that Article 10, viz., the Article regarding enforcement of right of pre-emption, will have to-be ordinarily applied, unless the suit does not come within the scope of either part of column 3 of Article 10.
The jenmi of the suit properties, subject of otti in favour of plaintiff, assigned the jenm rights under Ext A-3 on 1-11-1941 to one Kunhi Themana Pillayathiri Amma. The present suit was instituted to enforce the right of pre-emption, only on 24-12-1949.
According to the plaintiff, he was not aware of the rights conveyed by the jenmi and that he has got knowledge of the assignment in favour of the said Pillayathiri Amma, only when he got summons in the other connected suit. According to him, the date of knowledge is very material; and there was also a contention raised on his behalf that it is not Article 10 that applies to this case but it is only Article 120 that applies.
4. This claim was contested by the defendant on the ground that Article 10 directly applies and the plaintiff should have filed the suit within one year from the date of registration of the sale deed, Exhibit A3. Exhibit A3 was actually registered on 3-11-1941 and therefore it was contended that the suit, not haying been brought within one year of the date of registration, is barred by limitation under the latter part of column 3 of Article 10.
5. The trial court purporting to follow the decision of the Madras High Court reported in ILR 38 Mad 67: (AIR 1916 Mad 743), Mammali v. Kunhipakki Haji Abdur Rahim and Sundara Ayyar, JJ., came to the conclusion that Article 10 does not apply to the present proceedings and that the proper Article applicable is Article 120. On this basis, the trial court also further went into the question of the date of knowledge of' the plaintiff regarding the transaction evidenced by Exhibit A8 and' after recording necessary findings in favour of the plaintiff, came to the conclusion that the suit is not barred by limitation.
6. But on appeal, the learned Sub-Judge has held that the- decision in ILR 38 Mad 67 : (AIR 1916 Mad 743), is not applicable to the facts of this case. On the other hand, the learned Sub-Judge has referred to certain other decisions of the Madras High Court, and has come to the conclusion that the subject matter of the sale in this case under Exhibit A3, is one that does not admit of physical possession within the meaning of those expressions contained in the latter part of column 3 of Article 10, and therefore came to the conclusion' that the period of limitation starts from the date when the instrument of sale is registered. Proceeding on this basis, the learned Judge came to the conclusion that the present suit, to enforce a right of pre-emption filed by the plaintiff, only on 24-12-1949, is barred by limitation under Article 10 of the Limitation Act and as such dismissed the plaintiffs suit.
7. There were several other findings which have been incorporated in the judgments of both the courts and they are not' challenged before me in this proceeding. 1 must also mention that most of those findings are in favour of the plaintiff-appellant.
8. The only point that has been pressed before me by Mr. Balakrishnan Eradi, the learned counsel for the plaintiff-appellant, is that the learned Sub-Judge erred in not following, what according to him, is the direct decision of a Division Bench of the Madras High Court reported in ILR 38 Mad 67 : (AIR 1916 Mad 743). Mr. Balakrishnan Eradi contended that it cannot be stated in this case that the subject of sale does not admit of physical possession and therefore he contended that the latter part of column 3 of Article 10 will not apply.
The question of the applicability of the first pact of column 3 of Article 10 does not arise, because the plaintiff is the ottidar of the properties and therefore there is no question of the purchaser taking, under the sale deed, physical possession of the properties. The main controversy therefore is whether the learned Judge was correct in applying the latter part of column 3 of Article 10 to the present action. Mr. Balakmhnan Eradi also referred me to a decision of the Allahabad High Court report' ed in AIR 1926 All 70, Jagamaya Dasi v. Tuba --(Lindsay and Kanhaiya Lal JJ.) as supporting his contentions.
9. On the other hand, Mr. V. P. Gopalan Nambiar, the learned counsel for the contesting defendant, has referred me to the clear recitals in Exhibit A3, viz., the document, under which the jenmi has assigned his jenm rights. According to Mr. Gopalan Nambiar, the subject of sale under Exhibit A3 is only the jenm right owned by the jenmi, and therefore the subject of the said sale does not admit of physical possession and there-fore the learned Judge was perfectly justified in applying the latter part of column 3 of Article 10. Mr. Gopalan Nambiar also contended that the decision relied upon by Mr.. Balakrishnan Eradi and relied upon by the trial court, viz., the decision reported in ILR 38 Mad 67 : (AIR 1916 Mad 743), has no applicability in the present case.
The learned counsel also contended that regarding the question of the applicability of Article 10, the learned counsel appearing for the parties, in the said decision had agreed before the learned Judges that it was Article 120 that applies. The further contention raised by Mr. Gopalan Nambiar is that in the case covered by the said decision, there was one other significant circumstance, viz., that the sale deed itself had not been registered. Therefore on the basis of these two distinguishing circumstances, Mr.. Gopalan Nambiar contended that the decision in ILR 38 Mad 67 : (AIR 1916 Mad 743), has no applicability in the present action.
10. On the other hand Mr. Gopalan Nambiar has also referred me to certain decisions, directly dealing with transactions of sale, when the properties were in the possession of usufructuary mortgagees; and where the question as to what was the subject of sale in such circumstances had been considered. The decisions relied upon by Mr, Gopalan ' Nambiar are those ' reported in AIR' 1921Mad 554, Velayudham Pillai v. Velayudham Pillai--Napier and Krishnan, JJ., 45 Mad LJ 389 : (AIR1924 Mad 57), Viswanathan Chetty v. EthirajuluChetty -- Kumaraswamy Sastri, J.; ILR 9 All 234,Shiam Sundar v. Amanat Begam --- Straight andTyrrell, JJ. and AIR 1950 AIR 632, Sahadeo Singhv. Kuber Nath -- Mustaq Ahmad and Desai, JJ.In fairness, I will also point out that Mr. Balakrishnan Eradi has also drawn my attention to thedecision of the Nagpur High Court reported 'inAIR 1928 Nag 89 (1), Mohanlal v. Satyabhama --Kotval, A. J. C., which has followed the decisionof thg Madras High Court reported in AIR 1921Mad 554. , , ......
According to Mr. Balakrishnan Eradi though these decisions of the Madras High Court and some of the decisions of the Allahabad High Court are also the decision of the Nagpur High Court are more or less uniformly against the contention that he has raised before me, he submitted that those decisions may have to be reconsidered by this Court.
11. After hearing the learned Counsels on both sides, I do not think that the decisions relied upon by Mr. Gopalan Nambiar require to be in any way reconsidered by this Court. With respect I am in complete agreement with these decisions and in my opinion the decision reported in ILR 38 Mad 67 : (AIR 1916 Mad 743), so strongly relied upon by Mr. Balakrishnan Eradi, will not assist him in the contentions that he has placed before me.
12. In this case I am concerned with the case of a 'jenmi transferring the jenm rights in respect of properties, which are in the possession of an ottidar. The ottidar, in this case, is the plaintiff and his possession is in very many respects analogous to that of a usufructuary mortgagee. The question of the applicability of Article 10, when a landlord assigns the equity of redemption in such circumstances, has been considered by the decisions relied upon by Mr. Gopalan Nambiar. In my opinion those decisions will conclude the present appeal as against the plaintiff-appellant.
Before I deal with those decisions, it is desirable that I refer to the decision of the Madras High Court reported in ILR 38 Mad 67 : (AIR 1916 Mad 743). As mentioned by me, at the earlier portion of my judgment, the counsel appearing in that case has accepted the position that Article 120 applies to the facts of that case as is clear from the following observations of the learned Judges at p. 69 (of ILR Mad) : (at p. 744 of AIR):
'We may mention that there is no dispute before us that Article 120 applies to this case, for it is clear that Article 10 does not apply because the ottidar himself is in possession and there has been no registered instrument of sale within the meaning of that Article. Article 120 is in genera! terms.'
After having observed thus, the learned Judges proceeded to consider the applicability of Article 120 and went into the further question as to the date of knowledge of the party regarding the sale deed. This was necessary because, in that case, the document itself had not been registered and that iswhy the learned Judges had to consider when exactly the plaintiff therein had knowledge of the facts which have given rise to the 'cause of action before them to fix the time from which the period of limitation runs.
In my opinion, Mr. Gopalan Nambiar is well founded in his contention that this decision of the Madras High Court will not in any way assist Mr. Balakrishnan Eradi in, his contentions and he is also further well founded in his contention that Article 10 has application to the case before me. In my opinion, the reliance placed upon this decision by the learned counsel, Mr. Balakrishnan Eradi will not avail him, especially, as there are other direct decisions wherein this particular aspect of the matter has been, considered.
13. Before I consider the rulings of die Madras High Court and also of the Allahabad High Court cited by Mr. Gopalan Nambiar, I will deal with a decision of the Allahabad High Court on which also some reliance has been placed by Mr. Balakrishnan Eradi and that is the decision reported in AIR 1926 AH 70. That was a decision by Mr. Justice Lindsay and Mr. Justice Kanhaiya Lal dealing with the question as to when exactly, the period of limitation started in that particular case. This decision also, in my opinion, will not help Mr. Balakrishnan Eradi because that does not appear to have dealt with a case where a property was in the possession of an ottidar or a usufructuary mortgagee and where equity of redemption alone was transferred by the owner.
There is also the further circumstance that another direct decision of the Allahabad High Court, which had to deal with a question that is almost identical and parallel to the one that I have got, viz., the decision in ILR 9 All 234, has not been adverted to by the learned Judges in the decision reported in AIR 1926 All 70. The main basis of the decision in AIR 1926 All 70, is to be found at page 71 in the following observations :........, on a careful consideration of the two clauses as a whole we are inclined to think that the rule applicable to property such as an undivided share in a mahal which is not by its nature capable of physical possession cannot be applied to houses and shops over which physical possession is always possible and practicable.' The learned Judges had no occasion, as such, to deal with the case of a transfer of an equity of redemption alone by the owner of a property, when the property was in the possession of an ottidar or a usufructuary mortgagee.
14 Now I will come to the decisions relied upon by Mr. V.P. Gopalan Nambiar, the learned counsel for the respondent. The earliest decision is the one reported in AIR 1921 Mad 554, consisting of Mr. Napier and Mr. Krishnan, JJ. Mr. Krishnan, J., has considered die question in somewhat great detail and has considered the various aspects which have to be borne in mind in considering the applicability or otherwise of Article 10 of the Limitation Act. Mr. Justice Krishnan observes at page 556 of the reports :
'In cases where there is an outstanding Interest in third parties in the property sold, whichgives 'them a right, to possession, as in cases of leases and usufructuary mortgages; even if the sale purports to be of the land itself, the sale would pass only the lessor's or the mortgagor's-estate; the subject of the sale 'in such cases' may 'well be held to be only that estate and not die land; and as physical possession of such an estate cannot be given and the vendor not being entitled to the possession of the land itself could not pass it On to vendee, it may be that in such cases the second part of column 3 will apply, if there is a registered instrument.'
These observations have been very strongly relied upon by Mr. Gopalan Nambiar in support of his contention that it is the latter part of column 3 of Article 10 that applies to this case. It is in this connection that he referred me to, what according to him, is the actual subject of sale under Exhibit A3. According to Mr. Gopalan Nambiar the subject ot the sale, being the jenmi's right of equity of redemption, does, not admit of physical possession and therefore limitation starts from the date of registration of Exhibit A3.
15. In 45 Mad L. J. 389 : (AIR 1924 Mad 57), Mr. Kumaraswamy Sastri, J., had also to consider the applicability of Article 10 to a case where the property is transferred by the owner when a mortgagee is in possession thereof. The learned Judge, if I may say so with great respect, has considered the several decisions of all the courts bearing on the matter, including the Division Bench ruling of the Madras High Court referred to above, and has observed as follows at page 394 (of Mad LJ) ; (at p. 60 of AIR):
In this case as the property was under mortgage to the plaintiff with possession and the plaintiff was in possession of the property, all that can be sold was the equity of redemption and the equity of redemption not being one of which physical possession could be given, the case falls under the latter part of Article 10. Where the subject matter does not admit of physical possession, limitation runs from the date when the instrument of sale is registered.'
For this proposition, the learned Judge finds support from the decision of the Allahabad High Court and also of the Division Bench ruling of the Madras High Court reported in AIR 1921 Mad 554. It is not necessary for me to refer in any great detail to the decision of the Allahabad High Court reported in ILR 9 All 234. The learned Judges (Justice Straight and Justice Tyrrell) at page 239 observe :
'Now, an equity of redemption is the right now defined by statute, which entitles the mortgagor, at the proper time and place, upon satisfaction of the mortgage-debt, either by payment ot the amount to the mortgagee in possession, or after his realization of it from the usufruct of the mortgaged estate, to require him to deliver up possession to the mortgagor, and to execute an interest re-transferring it, or to have registered an acknowledgment in writing that the mortgage has been extinguished.'
After observing thus, the learned Judges further observe at page 239 :
'We do not think, in a transaction of this description, it can properly; be said that any property is sold which is capable of 'physical possession' within the meaning and intention of Article 10 of the Limitation Law.
The learned Judges further observe at the samepage:
'We are of opinion that an equity of redemption is not susceptible of possession of this description under a sale by which it is transferred, and that for the purpose of pre-emption a pre-emptor impeaching such a sale has one year from the date of registration of the instrument embodying it within which to bring this suit.'
This decision clearly lays down that an equity of redemption is not susceptible of possession and in such a case where it to transferred, the pre-emptor impeaching the sale, has to bring an action within one year from the date of registration of the instrument embodying the sale. To the same effect is the latest decision of the Allahabad High Court reported in AIR 1950. All 632, Mustaq Ahmad and Desai, JJ). At page 638 the learned Judges observe as follows :
'The plaintiff fails not only on the ground that there is no sale but also on the ground that the suit was barred by time. The limitation for the suit is admittedly governed by Article 10 which prescribes the period of one year from the date on which the vendee takes physical possession of the property or the date on which the instrument of sale is registered. The sale here was of equity ot redemption of a usufructuary mortgage. Such an equity of redemption is not capable of physical possession .........'
The learned Judges, apart from certain other decisions, have also relied upon the decision in ILR 9 All 234, already referred to by me. The principles laid down by the learned Judges of the Madras High Court in the decision referred to above, viz., AIR 1921 Mad 554, have also been approved in the decision reported in AIR 1928 Nag 89 (1), to which my attention was drawn by Mr. Balakrishnan Eradi himself.
Therefore there arc decisions of the Madras High Court as well as decisions of the Allahabad High Court and in Nagpur referred to and discuss-ed by me above, which take the uniform view that when tile equity of redemption is transferred by the jenmi in respect of the property in the possession of an ottidar or a usufructuary mortgagee, it comes under the latter part of column 3 and that the subject of sale does not admit of physical possession. In such cases the principles laid down in those decisions are also to the effect that the latter part of column 3 of Article 10 applies and in such cases the suit should be instituted within one year from the date of the registration of the instrument of sale.
16. The decisions relied upon by Mr. Gopalan Nambiar have stood the test of time for long and I do not thing I can accede to the request made by Mr. Balakrislman Eradi, the leaned counsel for the plaintiff-appellant, that those decisions require reconsideration by this Court. Therefore I consider that the lower' appellate court's finding that the plaintiff's suit is barred by limitation under Article 10 of the Limitation Act has' to be confirmed and it follows that the Second Appeal has to be dismissed.
17. Accordingly the Second Appeal fails and isdismissed with costs. No leave.