1. Suit in redemption. The Additional Subordinate Judge decreed the suit in part; on appeal the District Judge decreed it in full, and the defendant prefers this second appeal.
2. Dalavoy Kumarasami Mudaly was a great land owner in Tinnevelly. In 1803 three branches which had descended from his three sons effected partition. The youngest branch represented by Tirumalayyappa Mudaliar and his younger brother Ramalinga Mudaliar had the property divided under a precept from the Madura Court in 1824. In 1850 these two brothers themselves separated and in O.S. No. 1 of 1851 Ramalingam sued for partition. The above facts are taken from the judgment in that a suit, Ex. G.
3. The present plaintiff is grandson of Tirumalayappa Mudaliar. In proof of the mortgage which he seeks to redeem, he produces a counterpart, Ex. A, executed in 1856 in favour of his grandfather, by one Khader Labbai. It seems from the recital in that document that the property was mortgaged by the middle branch to a Chetti and in 1850 the Chetti sub-mortgaged to the Lebbai for the one third share of the youngest branch, which is confirmed by the document of 1856.
3. It is not by any means clear why the youngest branch was acting as though it, and not the middle branch, owned the equity of redemption. In the litigation between Tirumalayappa and Ramalingam it comes out that they were claiming nine villages which the middle branch got in the partition, because they alone had undergone the trouble and expense of getting the partition effected; but the village in Ex. A Kailathikulam, is not mentioned in the decree Ex. G. After this lapse of time it can only be said that for some reason unknown, the youngest branch claimed this right which apparently was not disputed.
4. In 1871 half the Lebbai interest was sold to the Nadars which is only important in this suit as explaining why when the defendant acquired the mortgagee's right in 1890 he executed two documents one to the Lebbais Ex. II and one to the Nadars Ex. IV.
5. In these documents it is recited that the mortgage was in 1856 and that half the equity of redemption was subsequently purchased 'by me' from Ramalinga Mudaliar.
6. The defendant (besides claiming to have acquired even the remaining half of the equity of redemption, a plea no longer pressed) claims to own this other half by virtue of the recital in these documents Ex. II, IV and this is the point for determination.
7. Except that Ramalingam is said in Exs. II and IV to have sold his half share after 1857, nothing is known about that transaction.
8. Besides acquiring the mortgage right the defendant also purchased from the Lebbais and Nadars whatever rights of ownership they had in this village under Exs. I and III and in these documents a fuller account of Ramalingam's sale ought to be found, but they contain no account of how the vendors acquired their title. Apparently the defendant was simply given two documents, Ex. VI dated 1856 which is a sale of one-third of the property to one Ramasubbayar by A. Kumaraswami Mudaliar and Ex. V dated 1857 which is a sale of one-third to Khadir Labbai by A. Tirumalayappa Mudaliar. The genealogies of 1884 and 1866 Ex. C, D do not indicate who these vendors were; nor is it known how Ramasubbayar's title passed to Khadir Lebbai.
9. Therefore, beyond Khadir Lebbai's assurance that he owned the property and the Nadars' assurance that they acquired from Khadir Lebbai the defendant has practically no evidence of his vendors' title. Both the lower Courts have found that the purchase of Ramalingam's half share is not proved, and that finding is undoubtedly correct.
10. The learned Subordinate Judge then finds that the defendant bought the property under the belief that Ramalingam had sold it, and the learned District Judge finds that the defendant hoi no reason to believe that he was buying an absolute interest. Of course, no solid reason is meant. The defendant had as a reason Khadir Lebbai's assurance, that he owned this title; and, as shown above, beyond Khadir Lebbai's bare word there was not much other proof of title in the whole transaction, sale and mortgage alike. If a person has no solid reason to believe a thing, it does not necessarily follow that he does not believe it all the same. The defendant on the facts upon record, had no solid reason to believe that Khadir Lebbai had any title to the property which passed to Ramasubbayar under EX. VI, and he had no such reason to believe that the persons named A. Kumaraswami Mudaliar, and A. Tirumalayappa Mudaliar had any right to alienate the estate enjoyed by the descendants of Kumaraswami Mudaliar. And he had no reason to believe that Tirumalayappa and Ramalingam had any title in the property so as to allow one to mortgage it, and the other to sell his equity of redemption. In the whole transaction the defendant trusted entirely to the word of his vendors, and apparently as regards the major part of the transaction they spoke the truth; for the title which they passed under Exs. I and III has never been disputed; and the mortgage Ex. A is generally admitted.
11. Therefore, the Sub Judge's finding that the defendant bought the property under the belief that Ramalingam sold it is correct; although as the District Judge observes there was no solid reason for such belief. In these circumstances there is no doubt that Article 134 applies, for eighteen years have elapsed since the date of the transfer, and there is no question of fraud.
12. In view of this finding it is not necessary to discuss the argument pressed upon us in case we should hold that the defendant had absolutely and literally no reason to believe that his vendor had title to transfer. But we may observe that we are inclined to doubt the obiter dictum in Venku Shettithi v. Ramachandrayya 92 Ind. Cas. 342 : 49 M. 29 : 49 M.L.J. 634 : 22 L.W. 885 : (1925) M.W.N. 866 : A.I.R. 1926 Mad. 81, and to question whether a transferee knowing perfectly well that his transferor has no absolute right which he can transfer, may nevertheless become a transferee of that non-existent right, can be held to have bargained for a transfer of that non-existent right.
13. On our finding, the present suit seems to afford a good example of the sort of case intended to be covered by Article 134, for which illustrations are not easy to imagine. Here there is no adequate proof of the absolute right, but the transferee undoubtedly took the transfer of the right on the understanding that it was owned by his transferor, and the original mortgagor so far acquiesced that he made no attempt to redeem till after the lapse of 62 years from the date of his mortgage.
14. Accordingly we allow the appeal with costs, in this and in the lower Appellate Court to appellant.
15. The decree of the first Court, that is of the Subordinate Judge, is restored.