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Mulla Vittil Seeti Kutti and ors. Vs. K.M.K. Kunhi Pathumma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai
Decided On
Reported in43Ind.Cas.31; (1917)33MLJ320
AppellantMulla Vittil Seeti Kutti and ors.
RespondentK.M.K. Kunhi Pathumma and ors.
Cases ReferredRamachandra v. Sheik Mohidin I.L.R.
Excerpt:
- - article 134, as is well known, is founded on section 25 of the real property limitation act 1834 which, after providing generally in section 24 that suits in equity should be barred in the same way as actions at law, went on to provide in section 25 that when land is vested in a trustee the right of the cestui que trust to bring an action for the recovery of the land shall be deemed to have first accrued when the land shall have been conveyed to a purchaser for valuable consideration and shall be deemed to have accrued only as against such purchaser and any person claiming through him. section 16 (v) of the act of 1859 was obviously taken from section 25 of the english act, but was made applicable to purchases from mortgagees as well as from trustees, and there is nothing in the.....wallis, c.j.1. our rules only provide for a reference to a full bench where both the learned judges constituting the bench agree that the question of law to be referred is involved in the determination of the case. there are weighty and obvious reasons for this limitation, and it is therefore desirable that we should confine ourselves to the questions which actually arise in the present case. the suit is to redeem a mortgage of the year 1862 and is within time as against the mortgagees, having been brought within sixty years from the date of the mortgage, article 148. the question is whether it is also within time as against transferees from the mortgagees, or is barred under article 134 as having been brought more than twelve years from the date of the transfer. the plaintiff's.....
Judgment:

Wallis, C.J.

1. Our rules only provide for a reference to a Full Bench where both the learned Judges constituting the Bench agree that the question of law to be referred is involved in the determination of the case. There are weighty and obvious reasons for this limitation, and it is therefore desirable that we should confine ourselves to the questions which actually arise in the present case. The suit is to redeem a mortgage of the year 1862 and is within time as against the mortgagees, having been brought within sixty years from the date of the mortgage, Article 148. The question is whether it is also within time as against transferees from the mortgagees, or is barred under Article 134 as having been brought more than twelve years from the date of the transfer. The plaintiff's mortgagees acting as full owners executed several usufructuary mortgages of items 2 and 3 under which they have been out of possession of these items since 1862 and 1894 respectively. The most recent mortgages of both these items were more than twelve years before suit, but the present mortgagees did not get possession under these mortgages from the prior mortgagees as regards item 2 until 1900 and as regards item 3 until after the institution of the present suit.

2. As regards both items the suit is covered by the language of Article 134 taken in its natural sense, but it is said that, as the plaintiff had no occasion to sue the present transferees by way of mortgage from the original mortgagees until they took possession as regards item 2 in 1900 and as regards item 3 after the institution of this suit, the article does not apply. With regard to the last case it must be remembered that possession was not with the mortgagees but with prior transferees from them, so that for over thirty years the mortgagors if they wished to recover possession of the suit properties would have had to sue transferees from the mortgagees.

3. This result, it is said, may be arrived at in three ways: (1) by reading the date of transfer in the third part of the article as meaning transfer with possession, (2) by holding that the article only applies to cases where possession is given on the date of the transfer and (3) by holding that time did not run under the article until the transferees from the mortgagees took possession. In my opinion none of these solutions is admissible. Article 134, as is well known, is founded on Section 25 of the Real Property Limitation Act 1834 which, after providing generally in Section 24 that suits in equity should be barred in the same way as actions at law, went on to provide in Section 25 that when land is vested in a trustee the right of the cestui que trust to bring an action for the recovery of the land shall be deemed to have first accrued when the land shall have been conveyed to a purchaser for valuable consideration and shall be deemed to have accrued only as against such purchaser and any person claiming through him. This was an exception in favour of the cestui que trust, as it prevented time running against him until there had been a conveyance by the trustees to a purchaser for valuable consideration. Now, as to the first suggestion, it has never been doubted, so far as I know, that when the section applies, time begins to run from the date of the conveyance, and not from the date when possession is taken under the conveyance. The very object of the statute was to get rid of the question as to when possession became adverse, which was the starting point under the Act of James I as construed by the Courts, and to fix a definite period at which the right to re-enter or bring the action for recovery should be deemed to have accrued, To come now to the Indian enactments, there is in my opinion equally little ground for holding ' the date of the purchase ' in the corresponding Section 16 (V) of the Indian Limitation Act of 1859 and in Article 134 of the Acts of 1871 and 1877 and ' the date of transfer ' in Article 134 of the present Act mean transfer with possession. Section 16 (V) of the Act of 1859 was obviously taken from Section 25 of the English Act, but was made applicable to purchases from mortgagees as well as from trustees, and there is nothing in the extension to justify us in reading purchase, or now transfer, as purchase or transfer with possession. The word ' purchase ' was probably substituted for ' conveyance ' to cover oral sales, but there is no reason to suppose that it was intended to depart in other respects from the starting point provided in Section 25 of the English Act. To adopt this construction in my opinion is simply to alter the statutory starting point and to go back to the date of adverse possession which was the old law modified by the Act of 1834.

4. I feel no less difficulty in holding that the present article applies only where possession is taken on the date of the transfer, as this is inserting words which are not there and would practically exclude nearly all the cases which would otherwise come within the article as possession is rarely taken by the transferee on the date of the transfer. Even supposing Section 25 of the English Act of 1834 to be susceptible of such a construction, I do not think that would affect the present question.

5. Mr. Lewin points out that a strict construction of Section 25 would bar reversionary heirs whose right to sue might not arise until long after the date of the conveyance, and he founds an argument on the fact that Section 25 is in form a proviso on Section 24 which imposes the same limitation upon suits in equity as upon actions at law, and a proviso the general effect of which is to extend rather than to limit the right of suit. As observed in Darby and Bosanquet, 2nd Edition, page 417, its effect is to prevent time running in favour of a trustee against a cestui que trust upon an express trust or those claiming through him until a conveyance for value has been made by such trustee or some one claiming through him and that the right of the cestui que trust is to be deemed to accrue at the date of such conveyance. 'Now it is obvious,' the learned authors remark ' that unless this is construed as only a proviso on the 24th section (the italics are mine) it might, instead of extending the time wherein the cestui que trust might bring his remedy actually take it away before his right accrued.' Accordingly they agree with Mr. Lewin that the section may be read as applicable only to cases where it extends, and not to cases where it restricts, the right of suit which the mortgagee might otherwise have. It cannot, I think, be said that this construction has ever been adopted in any decided case and Mr. Godefroi in his work on Trusts, 4th Edition, page 600, refers to it as probable but doubtful. On the other hand it would appear that in the cases to which the article has been held applicable the date of the conveyance has always been taken as the starting point. In Attorney-General v. Flint (1844) 4 Hare 147. one of the trustees of charitable land who was also the owner of adjoining lands incorporated a building standing on the charity land with a building standing on his own land and afterwards sold the whole building in 1817. A conveyance pursuant to the sale was executed by his executors some years later, and it was held that the suit was not barred as it was brought within twenty years from the date of the conveyance. In Petre v. Petre (1853) 1 Drew. 371, it was held that there was no express trust to bring the case within Section 25 but that, even if there were, the suit was barred as having been brought more than twenty years after the date of a deed by the trustee conveying the property to the trustees of his marriage settlement. In a somewhat similar Irish case Smith v. Smith (1876) Ir. R. 10 Eq. 273, the trustee was held to have conveyed the property to the trustees of Ms marriage under a settlement which was not forthcoming at the date of the suit and to have enjoyed it during his life-time, and it was held that a suit against his son who took under the settlement after his death was barred by Section 25. The decision was reversed on the ground that the terms of the settlement were not proved, Smith v. Smith I.L.R. (1876) Ir. 206 C.A but it would appear from the observations of Darby and Bosanquet, page 444 that the appellate Court agreed with the lower Court that the suit would have been barred under Section 25 if the settlement had been proved. Smith v. Smith I.L.R. (1876) Ir. 206 only decides that there is no dispossession until some one else takes possession. In St. Mary Magdalen, Oxford v. The Attorney-General (1857) 6 H.L.C. 189 : 10 E. R. 1267 there is nothing in their Lordships' judgments to recognise the contention raised for the respondent, and assuming however that this is the correct construction of Section 25 of the English Act, Section 16 (V) of the Indian Act of 1859 was not appended as a proviso to any previous section but was wholly self-contained, and, in the language of their Lordships in Lala Soni Ram v. Kanhaiya Lal : 25 M.L.J. 131, as regards other articles of the English and Indian Statutes, I think that Section 16 (V) of the Act of 1859 was essentially different in its language and intention from Section 25 of 3 and 4 Will 4, Order 27, and the same observation applies to Article 134 of the present Act.

6. With reference to purchases from mortgagees Section 16(V) of the Act of 1859 expressly provided that the period of limitation should be the same as in the case of suits against the mortgagee himself under Section 1(15), but this provision, which would have met the present case, was not reproduced in Article 134 of Act IX of 1871 which shows clearly the intention of the legislature to further restrict the time in the case of purchase's from mortgagees. Article 134 of Act XV of 1877 omitted the words in ' good faith' from the first part of the article, while the present Act of 1908 substituted the words transfer or purchase throughout the article with consequential variations. In these circumstances, it cannot, I think be held that the intention of the Indian legislature in this article was to make a provision in favour of the cestui que trust or mortgagor and give him a furthar period than he would otherwise have had. On the contrary, the intention was clearly restrictive, and it seems to me therefore that, even if the construction of Section 25 of the English Act suggested by Lewin and Darby and Bosanquet be accepted, that affords no warrant for introducing such a construction here. The Indian legislature, must have been perfectly well aware that in the case of sales and mortgages alike possession is rarely given on the date of the transfer and, if it had intended the date of taking possession under the sale or mortgage to be the starting point, nothing would have been easier than to say so. It has not done so, and it is not open to us to effect this by taking out of the article nearly all the cases which would otherwise fall within it. The decision of the Privy Council in Batul Begum v. Mansur Ali Khan . is no authority for such a course. That was a suit for pre-emption as to which under Article 10 the starting points are either taking physical possession or the registration of the instrument of sale. There had been no such registration, and the suit property which consisted of certain shares in an estate did not admit of physical possession being taken except by means of a partition suit which had not been brought. Neither of the starting points prescribed under Article 10 was to be found in the case, and in these circumstances their Lordships applied the residuary article. Here however we have the date of the instrument of transfer which is, as I read it, the prescribed starting point under Article 134. All that was decided in Rungiah Gounden and Co. v. Nanjappa Row I.L.R. (1908) M. 780 was that a decree directing the sale of mortgaged property in default of payment of the mortgaged debt on or before the date fixed in the decree was not a decree directing payment of the amount to be made at a certain date, within the meaning of Article 179, column 3, paragraph 6 (which I should have thought it obviously was not) and that consequently the application did not come within the article and must be governed by Article 178. This in my opinion is no authority for giving the go-by to the starting point prescribed in Article 134 for this particular class of suits by refusing to apply the article to the bulk of the suits falling under it and treating them as governed by some other article. I may add that I do not think any argument can be founded on the fact that the articles are printed in three columns.

7. Taking this to be the article to be applicable and the starting point to be the date of the instrument of transfer we have next to consider Whether there is any rule of construction under which time can be considered not to run until the transferee from the mortgagee gets into possession. In Lala Soni Ram, v. Kanhaiya Lal (1913) L.R. 10 IndAp 74, their Lordships laid down that that under the Indian Act, once time begins to run it could not be suspended except under the provision of the Act, and explained the decision in Burrell v. The Earl of Egremont (1844) 7 Beav. 205 as proceeding on the construction of the peculiar language of Section 40 of the English statute, and I do not think their Lordships intended to depart from that principle in their recent decision affirming the decision in Lakhan Chunder Sen v. Madhusudan Sen I.L.R. (1907) C. 209 for the reasons given by the learned Judges of that Court. That decision can be supported on the ground that the case was covered by Section 14 liberally construed, and I do not think it is authority for the proposition that under our Limitation Act we are at liberty to allow periods of suspension not provided for in the Act. That would be wholly opposed to the line of reasoning in Lala Soni Ram v. Kanhaiya Lal : 25 M.L.J. 131 as well as to recognised principles of statutory construction. It is t think equally inadmissible under the statute to say, not that the running of time shall be suspended, but that it shall not begin to run from the time limited in the article except under some express provision of the statute. See also the judgment of Neville, J., In re Metropolis and Counties Permanent Investment Building Society: Catfield's case (1911) L.R. 1 Ch. 698. For these reasons I am unable with great respect to follow the decision in Ramachandra v. Sheikh Mohidin I.L.R.(1899) 23 B. 614 and the obiter dicta in Husaini Khanam v. Husain Khan I.L.R. (1907) A. 471.

8. Briefly my answer is that, when as here1 the case is covered by the language of the article, it is not permissible to depart from the article itself or from the starting point prescribed therein on grounds of real or fancied hardship. Darby and Bosanquet have a final chapter on the construction of statutes of limitation but they do not refer to any such propositions such as are now suggested. In my opinion they are destitute of, authority and all the limitations which have been placed in modern times on the operation of the statutes of limitation have been based on a construction of the language of the particular sections and not on any such general principles. I may add that I see no great hardships in the present case. The mortgagees in this case had parted with possession to transferees more than thirty years before suit and had never retaken it, and the mortgagors might at any time have ascertained the extent of the incumbrances they had created by reference to the Registration Office of the District. My answer is that in this case the mortgagors are barred.

Abdur Bahim, J.

9. The questions referred to the Full Bench relate to the construction of Article 134 of the Limitation Act which has been the subject of much discussion. It is in these words: 'To recover possession of immoveable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration 12 years, (from) the date of transfer.' The article embodies certain alterations of the similar provisions of the previous Limitation Acts. In the first place, it is meant to apply not merely to purchases but also to other transfers made by a trustee or a mortgagee. This alteration was due, apparently, to the doubts that arose as to whether the word ' purchaser' covered the case of transferees like lessees and mortgagees. See Manavikraman Ettan Thamburan v. Ammu I.L.R. (1901) M. 471 and the dissentient judgment of Davies, J., and Ram Kani Ghosh v. Raja Sri Sri Hari Narayan Singh Deo Bhadur (1905) 2 C.L.J. 546 etc.

10. The main question raised by the reference depends in my opinion, on what kinds of transfer are referred to in the 'article' or in other words, whether the word 'transfer' means merely the execution of an instrument of transfer, such as a deed of sale, lease or mortgage, or the passing of property or of an interest in property along with possession. It is a well known rule for construing the Indian statute of Limitation that we must read the first and the third columns together. The first column of Article 134 defines the scope of the article as applying to suits for the recovery of possession of immoveable property which has been 'transferred' by a trustee or a mortgagee the date from which time is to be calculated is given as 'the date of the, transfer'. Now, from the very moment of the transfer the transferee should be capable of being sued for recovery of possession and this implies that the transfer must be a transfer with possession. The result would be that unless the transferee has been in possession for 12 years the suit against him would not be barred under Article 134. If the transferee did not obtain possession in pursuance of the transfer, Article 134, in my opinion would not apply at all. Reading the article, therefore in that light, I agree in the decision in Ramachandra v. Sheikh Mohidin I.L.R. (1899) B. 614 and Ilusaini Khanam v. Husain Khan I.L.R. (1907) A. 471 although some parts of the reasoning in those cases might be open to criticism. This is also the view suggested in Muthu v. Kambalinga 5 which it may be mentioned was overruled on another point by the Full Bench in Ahamed Kutti v. Raman Nambudri I.L.R. (1889) M. 316 and in all the cases which have been brought to our notice bearing on the interpretation of Article 134, the purchaser or other transferee who was held to be protected by this article had been in possession for 12 years. That also seems to be the effect of the English rulings as stated in Lewin on Trusts at p. 1125. 'No possession by a purchaser for valuable consideration short of the statutory period will be a bar.'

11. I should therefore answer the first question in the negative.

12. As regards the second question, I would answer it by saying that time will run from the date when the transfer is completed by the transferee being given possession.

13. The third question assumes the position that the mortgagor was not entitled to obtain possession from the mortgagee at the time of the transfer. It was strongly suggested in the course of the argument that in such a case Article 134 will not apply and that time will not run at all until the mortgagor's right to obtain possession from the mortgagee has accrued. Article 134, as has been pointed out in more than one decision, does not apply to cases where a trustee or a mortgagee makes the transfer in pursuance of the power vested in them in such cases the transferee becomes merely an assignee of the trust or mortgage and cannot claim any higher position see Vythilingam Pillai v. Kuthiravattah Nair I.L.R. (1906) M. 501 and Ram Kani Ghosh v. Raja Sri Sri Hari Narayan Singh Deo Bahadur (1905) 2 C.L.J. 546 it applies only to transfers made in excess of the transferor's powers. Now a mortgagee in possession is prohibited from doing any act which is destructive or permanently injurious to the property mortgaged (see Section 76 of the Transfer of Property Act.) If he therefore purports, for instance, to sell the property to a third person the mortgagor would be entitled, although the terms of the mortgage may not have expired to protect his own interests by a proper auit. If a transfer is only threatened he can obtain an injunction and if it has actually been made he can ask for possession to be delivered to the mortgagee. It is not however necessary to answer the third question.

Coutts Trotter, J.

14. With great respect to my brothers Abdur Rahim and Seshagiri Aiyar, JJ. and the learned Judges who decided Ramachandra v. Sheikh Mohidin I.L.R. (1899) B. 614, I am unable to construe 'transfer' as meaning 'transfer with possession,' because that is really what it comes to, that seems to me to amount to a bodily importation into the statute of words that are not there. But I am impressed with the argument that the third column of the schedule is meant to fix the time at which the plaintiff's cause of action is to be deemed to accrue. How can a cause of action be deemed to accrue at a time when circumstances precluded it from existing? It is very tempting to hold that the article cannot apply to a plaintiff whose cause of action did not exist at the time when limitation is said to begin to run. Such a general principle would be intelligible and very likely salutary but I do not find it in the statute or in any decision that is binding upon this Court, and I do not see how I can import a general principle into a codifying statute. It is no doubt a startling result to say that a man's cause of action can be barred before it has accrued but if the plain words of the enactment involve that, we cannot rewrite it. I agree respectfully with my Lord that the words here are too plain to evade and I question whether judicial attempts to mitigate the hardships of the obvious interpretation of statutes do not do more harm than good. If the words of the statute work injustice unless a violent strain is put upon them, the legislature alone can cure the evil.

15. My answer therefore to the first question is yes to the second from the date of the transaction.

Seshagiri Aiyer, J.

16. Although a large number of questions were submitted for the consideration of the Pull Bench the arguments related only to two points: (a) whether the plaintiffs are bound to pay a sum of Es. 9,000 to defendants 5 and 8 before redeeming the mortgage; (b) whether they are bound to pay them a further sum of Rs. 125. The facts which raise these two questions are briefly these: The plaintiffs are the owners of the property. They mortgaged items 2 and 3 for Rs. 1,000 to defendants 1 to 4 in the year 1862. It was a usufructuary mortgage, and defendants 1 to 4 took possession under the mortgage. In the year 1882, these defendants notwithstanding they were only mortgagees dealt with the property as if they were full owners thereof and gave a mortgage of item 2 to one Poker; in 1886 one Haji redeemed Poker. The 5th defendant redeemed Haji and got possession in 1900. From the year 1886 to 1900 Haji held possession under a mortgage for Rs. 125. Consequently, he acquired a right to be redeemed on the payment of that amount. The 5th defendant who has stepped into the shoes of Haji is entitled to claim that right. Mr. Sundram who appeared for the plaintiff did not dispute the liability of his client to pay the sum of Rs. 125 before redemption. That disposes of the second question.

17. The first question is more difficult. It was only in the year 1900 that the 5th defendant got possession of the property, although the mortgage for Rs. 9,000 was in the year 1894. The suit for redemption was brought in the year 1909. If limitation commenced to run from 1894, the date of the mortgage, the plaintiff could not maintain the suit in its present form. If, on the other hand, limitation began to run only from 1900 when possession was obtained by the 5th defendant, the suit is in time. I have come to the conclusion that the suit is in time. In my opinion, Clauses (1) and (3) of the schedules should be read together and the words appearing in one of the clauses should be given the same meaning as in the other clause. I also consider that the canon of construction suggested by Benson and Bhashyam Aiyangar, JJ. in Rungiah Gounden and Co. v. Nanjappa Row I.L.R. (1908) M. 780, namely, ' if the various starting points fixed in the third column of any article from which the period of limitation is to be reckoned do not cover all cases falling within the class of suits or applications described in the first column, it will be impossible to hold that the article in question is exhaustive of the class,' is the 'right one.

18. Before examining the language of Article 134, I may premise by observing that it is in the nature of an exception to Article 148 which provides for ordinary cases of redemption. It is also clear from its place that its object is to afford protection to the person in possession. Further the protection is of the same kind as that contained by implication in Section 28 of the Act, by which a prescriptive right (limited or unlimited as the case may be) is secured as against the person who has the legal ownership in him. Consequently one may safely assert that the article should be construed liberally in favour of the legal owner as it cuts down the remaining period for enforcing his rights of redemption and strictly against the transferee as he is permitted to acquire a right which in strictness he is not entitled to, and which secures to him an advantage only under special circumstances.

19. An analysis of the first clause of Article 134 of the Limitation Act shows (a) that the suit must be to recover possession; (b) that the properties sought to be recovered must have been first mortgaged and (c) that it should have been transferred by the mortgagee for valuable consideration. I have omitted the words relating to conveyance and trust in this analysis. The question then is, what is the meaning to be attributed to the word 'transfer' in the first column? If the suit is to recover possession it would not prima facie, lie against a transferee who has not obtained possession. It follows therefore that it is a pre-requisite of a suit under this article that the transferee from the mortgagee must have obtained possession. The word 'transfer' in this column does not simply mean a paper conveyance, but the transfer of possession. If the term 'transfer' is used in column (1) in that sense, it necessarily follows that the word 'transfer' in column (3) has the same meaning. The legislature in speaking of the date of the transfer in column (3) must have had in mind, the transfer with the attributes which that term possesses in column (1). In this view, time does not begin to run until the transferee has taken possession of the property. If we turn back to Section 28 of the Limitation Act, the right which is extinguished and which confers upon the opposite party a title by prescription is traceable to loss of possession. That is the policy of the law, and I fail to see why the legislature should be taken to have meant in Article 134 that anything short of deprivation of possession should bar a person entitled to possession or confer upon the party not taking possession, a prescriptive title as if he had been in possession from the date of the paper transfer. The essence of the title lost and of the title acquired both under Section 28 of the Limitation Act and under Article 134 is that one party should have lost possession and the other party should have acquired that possession. I am, therefore, apart from the authorities, of opinion that under Article 134 a transferee from a mortgagee prescribes only from the date that he takes possession of the property transferred to him. Eeference may be made in this connection to the observations of Mookerjee, J., in Promotha v. Kishore (1916) 25 C.L.J. 133 and in Priyasakhi Debi v. Bireshur Shamantha 21 C.W.N.177. Mr. Justice Muthusami Aiyar understood the word 'purchase' in the third column of Article 134 before it was amended as relating to possession under the purchase. There is the direct authority of Ramachandra v. Sheikh Mohidin I.L.R. (1899) B. 614 in favour of the view I have indicated. Husaini Khanam v. Husain Khan I.L.R. (1907) A. 471 also is to the same effect. Nothing that has been urged in the course of the argument in this ease has led me to depart from the position so uniformly maintained.

20. I do not propose to discuss at length the case-law bearing on 3 and 4 Will. 4, c. 27 from which admittedly Article 134 has been borrowed. The Indian article is far wider in its application than the English section. None-the-less, the principle which was held to underlie 3 and 4 Will 4, c. 27, has a bearing upon the present case. In Agency Company v. Short (1888) L.R. 18 A.C. 793. Sir Horace Davey (afterwards Lord Justice Davey) contended that 'Under 3 and 4 Will 4, e. 27, the title of the rightful owner to land is not defeated unless some other person or successive persons has or have been in possession thereof for a continuous period of twenty years.' Lord Macnaghten accepted this contention and held that where a trespasser was in possession for less than twenty years and then re-linquished possession, the law presumed that the rightful owner was in possession immediately after. In answer to the argument that when once time had begun to run, nothing can stop it, his Lordship stated: 'There is not, in their Lordships' opinion any analogy between the case supposed and the case of successive disabilities mentioned in the statute. There the statute 'continues to run' because there is a person in possession in whose favour it is running.' Parke Baron's observations in Smith v. Lloyd (1854) 9 Exch. 562 : 28 L.J. 194 to the effect (Welsby, H. and Gor. 562), 'We are clearly of opinion that the statute applies not to want of actual possession by the plaintiff, but to cases where he has been out of and another in, possession for the prescribed time. There must be both absence of possession by the person who has the right, and actual possession by another, whether adverse or not, to be protected, to bring the case within the statute. We entirely concur in the judgment of Chief Justice Blackburne in M'Donnel v. M'Kinty (1847) 10 Ir. L.R. 514, and the principle on which it is founded,' were accepted by the Judicial Committee as good law. The argument of Counsel in Attorney-General v. Flint (1844) 4 Hare. 147 seems to have proceeded on this assumption, although the question of possession did not directly arise for consideration in that case. If we bear in mind the further principle that there can be no presumption of possession in favour of a wrongdoer, it becomes clear that the rightful owner is not affected by anything short of actual possession taken against him. Compare Secretary of State for India v. Krishnamoni Gupta I.L.R. (1902) C. 518.

21.In this view, although the 5th defendant obtained a mortgage in 1894 for Es. 9,000, as he did not take possession under it until 1900 and as the suit was brought within twelve years of the taking of possession, the plaintiff is not bound to pay the sum of Es. 9,000 before redeeming the mortgage.

22. There is another way of looking at this question, which I do not propose to examine at any considerable length but having regard to the fact that that point of view has found favour with one of my learned colleagues, I wish to say a word on that question. In this connection I am assuming that the word ' transfer' in Article 134 does not mean, ' transfer with possession.' In that view, if at the date of the transfer, the transferee had not taken possession, the Article 134 would have no application. If the article does not apply, then the residuary Article 144 would apply as against the person who claims to have acquired a limited prescriptive right to be redeemed. Under that article time begins to run only when the possession of the defendant becomes adverse to the plaintiff.

23. In my opinion, wherever both the 1st and 3rd columns of an article are not applicable to a case, we must apply the residuary articles. The function of the residuary articles is to provide for cases which could not be covered by the exact words used in both the columns of an article. After all, no legislature and the ingenuity of no draftsman can provide in terms against all possible contingencies, and that is the reason why residuary articles are inserted in the Limitation Act. In this view also the suit is in time. Therefore my view is that the claim of the 5th defendant that he should be redeemed only on payment of Es. 9,000 to him is unsustainable.

24. In the light of the above observations, my answer to the first question is ' No '. The answer to the second question is that time begins to run only after the date of possession. I do not think it necessary to give an answer to the third question, as it does not arise for consideration in this case.

Srinivasa Aiyangar, J.

25. Article 134 of the Limitation Act has not been easy to construe, nor is it easy to apply in concrete cases. Soon after the omission in 1877 of the words ' in good faith ' which qualified the word 'purchasers,' in the Limitation Act of 1871, a question arose which is not yet settled beyond controversy, whether a transferee with actual knowledge of the limited title of his transferor was entitled to the protection of the article, especially when such transferor had under no circumstances power to transfer a larger interest than he had. There was no apparent reason for treating him differently from his transferor but yet the language of the article was plain. It may be that the legislature desired in the case of transferees for value to prevent an inquisition into circumstances attending the transfer or the state of knowledge of the transferee after twelve years from the date of the transfer. Mr. Justice Ayling and myself' had to consider the question in a recent case, Subbaiya Pandaram v. Mahamad Musthapa Marakayar (1916) 32 M.L.J. 85; but that it is not the point here.

26. The questions referred to us are as to the applicability of the article to suits where the mortgagor had no right to sue for possession on the date of the transfer, or where the transferee does not or cannot take possession on the date of the transfer, that is one question, and the other, as to the starting point of limitation to suits to which the article applies.

27. The suits contemplated by the article are suits for possession, presumably by a mortgagor or his representative, (we are concerned only with mortgages here) and against the transferee or his representative. Though there was some discussion at the bar about it, there can be no doubt that the suits governed by the article are suits against the transferees or their representatives. Section V of the Act of 1859 in which the provision was first enacted is conclusive of this question, for it says ' in suits for recovery from the purchaser or any person claiming under him.' Further the article cannot, I think, apply to suits where at the time of the transfer the mortgagor was not entitled to sue for possession; otherwise he may be barred before he has a right of action. The mortgagor for instance may not be entitled to redeem till after the expiry of over 12 years from the date of the mortgage and if soon after the date of the mortgage the mortgagee alienates the mortgaged property and places the alienee in possession, the mortgagor would be left wholly without a remedy if Article 134 applied in so far as the recovery of possession of his land is concerned, a manifestly unjust result. When we remember that mortgages for long terms are quite common in this country and in Malabar the common and the usual mortgage (the kanom) is irredeemable for twelve years, we would not be justified in construing Article 134 in such a way as to indirectly take away the right of redemption of the mortgagor, while that right has been the subject of anxious protection in law so much so that an impediment to the fair exercise of the right even by a contract of the parties at the time of the transaction, i.e., a clog on the equity of redemption is not recognised. The Indian Legislature in Section 60 of the Transfer of Property Act, as has been pointed out, has omitted the words, 'in the absence of a contract to the contrary,' with a view to prevent the mortgagor from contracting himself out of his right of redemption at the time of the mortgage. Whatever doubts there may have been prior to the decision of the Privy Council in Bakhtawar Begam v. Husani Khanam : 26 M.L.J. 474 as to whether the mortgagor was at liberty to redeem before the time limited for payment, now, there can be no question that he cannot do so unless he reserves such a right by the mortgage contract. No doubt it may be said that a mortgagor should not bind himself not to redeem for a long period, but a Limitation Act should not be construed as fettering or affecting a substantive right. It may also be said that he may have an action for damages against the mortgagee on his covenant to place him in possession on redemption, but that would be a poor substitute for his land.

28. As on principle, no period of limitation can begin to run till there is a cause of action, (the third column of the elaborate schedules in the Limitation Acts of 1871 and onwards is based on this principle and the terminus a quo as far as possible is made to coincide with the earliest time at which an action could be brought) we ought not to construe the article, if the language admits of it, in such a way as to bar the action before the cause of action arose or even, to cut short the period so as to give varying periods of time for the same suit, varying according to the time which elapsed between the date of the transfer and the accrual of the cause of action. In construing these articles of the Limitation Act we should not lay undue stress on the first column of the article which describes the nature of the suits, and hold that all suits of that class must be governed by that article, though the starting point fixed in the third column cannot be applied at all or cannot be applied without working injustice. On this principle in Rungiah Goundan and Co. v. Nanjappa Row I.L.R. (1903) M. 780 it was held that an application for execution of a mortgage decree which cannot be executed till after the time fixed for payment, (usually six months), is not governed by Article 179 of the Act of 1877 but by Article 178 of that Act. It is to be observed that one of the starting points specified in the third column of Article 179, is the date of the decree and there is no difficulty in counting the period of limitation from that date, and it is as easy to apply Article 179 to that case as Article 134 to this. For other illustrations of the same principle I may refer to the decision of this Court in Palaniyandi Malavarayan v. Vadamalai Odayan (1915) 2 L.W. 728 and Manikkam Pillai v. Thanikachelam Pillai (1916) 4 L.W. 869 where it was held that unless there was a person in existence competent to sue, there can be no limitation. There may no doubt be cases where on ground of public policy or owing to the difficulty in fixing precisely the time when the cause of action arises, a limited period may be fixed beginning from more or less arbitrary starting points; for example a suit to recover moveable property from a depositary or pawnee must under Article 145 of the Limitation Act be brought within 30 years from the date of the deposit, or pawn, though there may be a contract between the parties fixing a time before which the despositor or pawnor could not recover the property from the bailee. Such contracts are likely to be rare and it is obviously convenient that questions of title to moveable property which is capable of transfer by mere delivery of possession should be settled as soon as possible. It is noteworthy that though under Clause 15 of Section 1of the Act of 1859 the beginning of the period of limitation was the date of the transaction in suits to recover moveable and immoveable property alike, irrespective of the time fixed by the contract for such recovery and though the same provision was re-enacted in 1871, in the Act of 1877 the starting point was altered so as to coincide with the date of the accruer of the cause of action as regards suits to redeem mortgages of immoveable property. Again when the Act of 1908 was passed, in Article 138 the starting point, was altered as to coincide with the accruer of the cause of action and Clause 2 was added to Section 15, thus shewing the anxiety of the legislature to prevent any injustice by time running against a person who was unable to sue. At the same time it is to be noted that though a change was made in respect of suits for redemption or recovery of possession of immoveable property from mortgagees, no corresponding change was made in Article 134 which provided for suits to recover possession from transferees. This may be due to the fact that Article 134 provides for recovery from transferees, not merely, of mortgagees but also of trustees.

29. As regards recovery of moveable property from buyers from bailees or trustees for which provision is made in Article 133 in practically identical terms, there is no difficulty in applying the article, as the bailor may recover possession from the buyer without reference to the time fixed in the contract of. bailment as the bailor can at his option avoid the contract of bailment in the circumstances referred to in the first column of the article. Section 158 of the Contract Act. Donald v. Suckling (1833) L.R. 1 Q.B. 585 per Blackburn, J.

30. In England 3 and 4 Will 4, c. 27, Section 28, which was afterwards repealed and re-enacted as Section 7 of the Real Property Limitation Act of 1874 merely reducing the period of limitation from 20 years to 12, provided 'that when a mortgagee shall have obtained the possession or receipt of the profits of any land comprised in his mortgage, the mortgagor shall not bring an action or suit to redeem the mortgage but within 12 years next after the time when the mortgagee obtained such possession'. Both before the enactment, (when Courts of Equity applied the provisions of the statutes of limitation, which in terms did not apply to equity suits, in analogy to actions at law), and after, it appears to have been understood that the provisions of the statute and similar provisions in the earlier statutes did not bar redemption even after 20 years from the date of the mortgagee taking possession, if the mortgagee as such was entitled to remain in possession till his mortgage was satisfied, i.e., where, as in the case of a Welsh mortgage which closely resembles a usufructuary mortgage as defined in the Transfer of Property Act there is no question of defeault, or for forfeiture or right of foreclosure see Coote on Mortgages, pp. 32 and 33. Yates v. Hambly (1742) 2 Atk. 860 Fenwick v. Reed (1816) 1 Mer. 114: 35 E.R. 618

31. In Alderson v. White (1858) 2 De. G.& J. 97 : 3 Jur. 125 there was a sale and a covenant to resell on payment of the purchaee-money at or upon the 25th March in any year. The suit was to redeem long after 20 years after the purchaser had taken possession. The Lord Chancellor in appeal held that the transaction was not a mortgage and that concluded the case. But referring to the plea of the statute he said: 'I am disposed to think that the statute cannot apply so as to make the mere possession by the mortgagee for 20 years a bar to redemption when the original contract is in terms that the mortgagor may redeem at any time during a period extending beyond the 20 years '.

32. It appears to me therefore that the stringent provisions of Article 134 which cuts down the long period of 60 years which a mortgagor has after his right to redeem accrued, should not be construed as barring his action even before it arose, or as giving him a lesser period than 12 years if the cause of action arose after the date of the transfer, but before the expiry of 12 years, more especially as a transferee need not be a transferee in good faith. This question however does not really arise in this case and it is therefore unnecessary to answer the 3rd question in the reference.

33. As regards the 1st and 2nd questions I think, that unless the transferee had possession, on the date of the transfer the article cannot apply. The possession need not be physical or actual possession. As I have said already the suit must be one for possession against the transferee. The article is obviously intended to protect a person in possession for over 12 years and the article assumes that the plaintiff is in a position to sue for recovery of possession from the transferee on the date of the transfer. If on the other hand the article is so construed as to apply to cases where the transferee has not possession or cannot, or is not entitled to get possession on the date of the transfer, there is no reason to confine it to cases in which the transferee takes possession within 12 years from the date of the transfer, and not to apply it to cases where he takes possession long after 12 years from the date of the transfer. In the latter case the mortgagor's right to redeem or recover possession would lease, retrospectively as it were, the moment the transferee obtains possession, even if he gets it by the voluntary surrender of the mortgagee or his representative. To take a case which is of ordinary occurrence in Malabar, A is the jenmi and grants a kanom on the 1st January 1900 to B. This is not redeemable within 12 years, and in often not redeemed for a much longer time. B sub-mortgages his mortgage interest on kanom to C a year after, i.e., on the 1st January 1901 and places C in possession and immediately after, say on the 1st February 1901 sells the property to D absolutely or gives a melcharth purporting to act as the jenmi. D will have to redeem C before he obtains possession which he may not be entitled to do till after 12 years from the 1st January 1901, i.e., till January 1913 as C might claim to hold possession as kanomdar against his mortgagor B and his transferee D, though not against the jenmi A. The amount due to C is never an easily aseertainable sum, owing to his right to compensation for improvements which is often not settled till after a prolonged enquiry in Courts. Many years may elapse, even twelve years, before the rights of D and C inter se are settled and D becomes entitled to or gets possession through Court. In the cases supposed A cannot sue anybody for possession till after the 1st January 1912 and would have 60 years to redeem B and recover possession from C. D is not entitled to redeem C till January 1913, and may not get or even be entitled to get possession till some time after. Twelve years from the date of the transfer would expire in February 1913, and A has practically no time to bring a suit for possession from D the transferee even under the most favourable circumstances. But D may not take possession, for many a melcharth holder is unable or unwilling to pay for redemption immediately he obtains a transfer, more especially as he generally stipulates for 12 years enjoyment after he obtains possession. The real owner then may be barred, the very instant he is able to sue the transferee for possession. In this very case one of the transferees got possession after the institution of the suit for redemption. It must be remembered that there can be oral sales, in places where the Transfer of Property Act is not in force, and such sales would have been valid in all Provinces before the passing of that Act, and when the Limitation Ads of 1877 was enacted. The language of. Article 134 in that Act so far as concerns the present matter was exactly the same as that of the later Act of 1908. It is difficult to see how the mortgagor can in such eases possibly know that his rights are being affected to his prejudice, assuming that there is some sort of a duty to search the registers to find out if his mortgagee has not been fraudulently dealing with the property in violation of the mortgage contract. It is true, that the Law of Limitation may bar a person's right, though he may not know that his rights are being infringed, but where he has no reason to believe that his rights are infringed by the act of those who are bound to protect it, it appears to be unnecessary to restrict or interfere with his right, unless the language of the statute is plain. A mortgagor can no doubt as soon as the mortgage-money becomes payable, sue to redeem the mortgage and implead in that suit the transferees of his mortgagee, but if his mortgagee is in possession on his own behalf, the suit would be governed by Article 148 and not by Article 134. If after the institution of such a suit the transferee obtains possession, as has happened in this very case, should the suit be dismissed as barred by Article 134, though it was not barred at its institution? It must be remembered that the doctrine of lis pendens cannot apply, as the transferee obtained possession by virtue of a right created antecedent to the institution of the suit. The fact that in this case the original mortgagee had created mortgages and placed the mortgagees in possession is also immaterial, for they had been redeemed by the last transferee from whom possession is sought the last transferee does not claim as assignee of the previous mortgagees whom he had redeemed, but as a mortgagee from the original mortgagee.

34. It was not suggested that suit for recovery of possession in Article 134 do not include suits to recover possession on payment of whatever may be found due to the mortgagee, i.e., suits for redemption, and no such limitation can be placed on the article.

35. The conclusion then, I arrive at is, that unless the mortgagor or his representative can sue for recovery of possession from the transferee on the date of the transfer the article does not apply. This construction gives sufficient protection to those who are entitled to projection, namely persons who take a transfer from mortgagees who, rightly or wrongly, they may believe, have the power to transfer an absolute title, as a mortgagee by conditional sale after condition broken, an English mortgagee after the period fixed for redemptipn, or a mortgagee with a power of sale after the time for the exercise of the power has arrived as by lapse of time they may be prevented, from proving facts or circumstances which would enable them to keep their purchase. That, I believe, is also the reason for the omission on of the words 'good faith' in the article for a person may not be able to prove it after a long lapse of time, though the omission undoubtedly may enable a transferee with notice to obtain the protection of the article. Even transferees from ordinary usufructuary mortgagees may be entitled to protection, as such mortgages, in Provinces in which the Transfer of Property Act is not in force, may be effected by delivery of possession, and a transferee from a person who has long been in possession may not be in a position to find out whether such possessor is an absolute owner or a mere mortgagee, just in the same way as it may be difficult to ascertain if a person in possession of moveable property is an absolute owner or bailee. But there is no reason to extend the protection so as to materially affect the substantive rights of owners who are not in a position to protect their interests.

36. If however the article is to be applied it is difficult to fix any other date than the date of the transfer, i.e., the transfer of title as the starting point. That 'transfer' in this article means the transfer of title and not transfer of possession is clear, for the word 'transfer' was substituted for the word 'purchase' to settle the conflict of decisions on the interpretation of the latter word in the Act of 1877. In In re Metropolis and Counties Permanent Investment Building Society (1911) L.R. 1 Ch. 698, Neville, J., held that time for redemption of a common mortgage in England commenced from the date of the mortgagee taking possession as provided by Section 7 of the Real Property Limitation Act of 1874 and observed that the statement in Fisher's Book that 'time will not run in the case of a common mortgage until the day of redemption has arrived for the mortgagor cannot redeem before that day, must be accepted with caution he apparently dissented from the dictum of Walton, J., to the contrary in a previous case. It is to be observed that there was no question in that case that Section 7 of the statute applied to the suits for redemption of common mortgages, in which ordinarily the mortgage money becomes payable in six months there are also generally provisions in these mortgages for the mortgagor being in possession till default. There can therefore be no hardship in applying the provisions of the section. Hardship or no hardship if the language of the statute is quite plain as it is in this case, we are not entitled to take liberties with it under the guise of construing it. I am therefore with all respect unable to agree with the decision in Hussaini Khanam v. Husain Khan I.L.R. (1907) A. 471 Ramachandra v. Sheik Mohidin I.L.R. (1899) B. 614 as I read it, only decided that Article 134 does not apply except to cases of transferees with possession.

37. My answer then to the questions 1 and 2 is that Article 134 does not apply except to the cases mentioned therein.


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