1. The suit was brought by the plaintiff a Hindu Reversioner, for a declaration that a mortgage by the widow of the last male owner (1st defendant and a Court sale in execution of the decree obtained on the mortgage by the 2nd defendant (the mortgagee) are not operative, after the death of the widow, so as to be binding on him.
2. The mortgage was dated 1905. The suit on it was filed in 1909. It is conceded on both sides that the suit is barred, under Article 125, if limitation commenced to run in 1905 (that is, from the date of the mortgage) and is not barred, if it commenced in 1910 (that is, from the date of the sale). The Courts below-the District Munsif and the District Judge-held that the alienation substantially was in 1905 and that the Court sale in 1910 was merely consequential on the mortgage and that limitation began to run from 1905, and dismissed the suit.
3. In Second Appeal, it was contended before a learned Judge of this Court, that the mortgage was not intended to have any operation, that only in 1909 it was attempted to be put to any use and the only alienation in the case was in 1910, and not in 1905. This argument was accepted by the learned Judge and the suit was remanded for disposal according to law. The 2nd defendant's legal representative files this Letters Patent Appeal.
4. We are unable to agree with the view taken in the judgment appealed against. Paragraph 8 of the plaint alleges that the mortgage was collusively affected, in order to defeat the reversionary rights of the plaintiff and without any justifying necessity. In paragraph 9, he alleges that the mortgage is inoperative, beyond the lifetime of the 1st defendant. This shows that he never meant to allege that the mortgage was not intended to be operative, during the lifetime of the 1st defendant, even as against her. An apparent transfer, so as to ultimately deprive the plaintiff of his rights as reversioner was certainly intended to be alleged. Plaintiff tendered no evidence before the District Munsif, to show that the mortgage had no operation of any kind till 1910. In the grounds of appeal before the District fudge, the point raised in the High Court was never suggested. We are of opinion that the construct ion of the plaint now suggested was raised for the first time in the High Court.
5. In this case, the real alienation by the widow was all in 1905. The events in 1910 are merely the result of it, It is true there may be cases, where the widow may do something in the course of the suit itself, that it is possible to say the decree only amounts to an alienation. In this case, the alienation which has to be attacked before the plaintiff can succeed, is the mortgage of 1905. The present case is on all fours with the decision in 1894, in Jaggi v. Pirthi Pal (1894) A.W.N. 134. We agree with the decision and hold that the suit is barred. There are two other casses Kuppuswamy v. Srinivasa (1911) 9 M.L.T. 445 and Tukabai v. Lalasao A.I.R. 1922 Nag. 197 to the same effect; but neither of them is by a High Court.
6. The case in Srinivasa v. Venkatramana (1882) 5 Mad. 121 has been referred to by the respondent. That case had been complicated by an, adoption. The view in that case as to the effect of adoption on the Limitation Act of 1859, and 1871, was opposed to the later Privy Council Ruling in Jagadamha Chaodhrani v. Dakhina Mohan Boy Ghaodhri (1886) 13 Cal. 308 and it cannot help us.
7. It is true that the prayer was for declaring the sale not binding on the plaintiff. We must look at the substance and not the form. To say that the suit is barred or not, according as the prayer is for a declaration that the mortgage or sale is not binding is to allow a quibble with words. The plaintiff cannot escape limilation; by a mere device of this kind. The cases in Sheo Singh v. Jeoni (1897) 19 All. 524 and Bam Sarup v. Bam Dei (1907) 29 All. 239 have no bearing on this case.
8. The plaintiff has his remedy in a suit, after the widow's death, if the mortgage is a collusive mortgage.
9. We allow the appeal and restore the decision of the District Judge. The appellant will have all his costs in the High Court.