1. This suit was brought to redeem a usufructuary mortgage of the year 1885, and the sole question for determination is whether the mortgagor had 60 years within which to sue to recover possession under Article 148 of the Limitation Act, or only 12 years under Article 134 or 144. The mortgagee's interest in the suit properties changed hands four times between the execution of the mortgage-deed of 188.5 and the institution of this suit in 1911, first, by a Court sale in execution of a decree, secondly, by a sale in 1893 for arrears of rent due by the purchaser at the Court-auction, and thirdly and fourthly, by private sales in 1896 and 1906. The two private sales purport to be absolute transfers of the entire right in the property. The mortgagor's suit is obviously time-barred if 12 years have to be reckoned from any of these transfers but the last. If fraud had been alleged and proved, the plaintiff would of course have 12 years under Section 18 of the Limitation Act from the discovery of the fraud, but fraud is not the case set up here. The Subordinate Judge held that Article 134 or Article 144 applied and that Article 148 did not apply. Article 134 allows 12 years from the date of transfer.
2. On the mortgagor's behalf, it is contended that Article 134 is not applicable, because it was held in Ahamed Kutti v. Raman Nambudri 25 M.S 99 overruling Muthu v. Kambalinga 12 M.S 316 that a purchase at a Court-sale is not a purchase within the meaning of the Article; and as regards Article 144 it is contended that it will not bar this suit because it allows 12 years from the defendant's possession, becoming adverse to the plaintiff and because a person who dispossesses a mortgagee in possession does not hold the property adversely to the mortgagor until the mortgagor becomes aware of the adverse title being set up by him [see Peria Aiya Ambalam v. Shunmugasundaram 22 Ind. Cas 616. It is clear that the plaintiff cannot have resort to this Article unless he shows that Article 134 is inapplicable.
3. Since the decision of Ahmed Kutti v. Raman Nambudri 11 M.L.J. 323 was given, the Limitation Act has been amended and the word 'transfer' appears in place of the word 'purchase' in Article 134. But as the transfer has to be one made by the mortgagee, the change in language will not affect the Full Bench ruling.
4. The first Court sale passed the interest of the mortgagee only. If the sale for arrears of rent in 1893 be excluded, there will still remain the private sale of 1896 to bar a plaintiff who sues under Article 134 on a date more than 12 years after the sale.
5. Against that, it is argued that the purchaser of the mortgagee's interests is not himself a mortgagee within the meaning of the Article.
6. In a similar case decided by Chamier, J., in Ghasi Ram v. Kishna 30 Ind. Cas. 564, it was held contra that the auction-purchaser of the rights of the mortgagee steps into the shoes of the mortgagee and that the subsequent purchasers by private treaty from the auction-purchaser can rely on Article 134. to defeat a plaintiff seeking to redeem.
7. The learned Judge proceeded to declare that, notwithstanding the omission from the Limitation Acts of 1877 and 1908 of the words 'in good faith' which appeared in this Article in the Limitation Act of 1871 as well as in the corresponding Article of the Limitation Act of 1859, the purchaser must show that he purchased in the bona fide belief that he was purchasing an absolute proprietary title, if he wants to take advantage of this Article.
8. In a case decided by this Court which appeared as Veerabadra Tevan v. Veerappa Tevan 15 Ind. Cas. 609, the Subordinate Judge held that Articles 134 did not apply to the case of a purchaser from a mortgagee of his interest as such mortgagee.
9. Without discussing the point of law the learned Judges who decided the appeal apparently accepted this principle, and laid the onus on the defendant of proving affirmatively that there was an absolute purchase of the property and not merely a transfer of the mortgagee's interest. The wording of the Article itself shows that it deals with absolute transfers of immoveable property and not with transfers of mortgagee's interests. A person who obtained the latter kind of transfer would only be an assignee of the mortgagee. Such were the purchasers under the Court auction and the rent sale referred to above.
10. With due respect, I cannot see my way to adopt Chamier, J.'s opinion that it is incumbent on the purchaser to prove that he purchased in good faith, if the learned Judge by 'good faith' meant, without constructive notice of the restricted nature of the vendor's title. In the case of a transferee from a trustee we held in Prasanna Venkatachella Reddiar v. Collector of Trichinopoly 33 Ind. Cas. 45 that a transferee for consideration need not also prove that he is a transferee in good faith, for, as was pointed out at page (sic) by Tyabji, J., Section 64 of the Indian Trusts Act does not allow trust property in the hands of a bona fide purchaser for consideration without notice of the trust to be followed at all, and Section 10 of the Limitation Act makes an exception of assigns for valuable consideration when it provides no limitation of time for suits against trustees.
11. Article 134 deals with transfers of immoveable property from trustees as well as transfers from mortgagees, and it cannot be supposed that the Article requires the transferee to prove good faith in one case and not in the other.
12. This is the view taken in Pandu v. Vithu 19 B.S 140, with which I respectfully agree. This decision refers to the judgment of the Privy Council in Radhanath Doss v. Gisborne 14 M.I.A. 1 under the Limitation Act of 1859, which distinguishes between a purchaser and an assignee of a mortgage, and again between a purchaser in good faith and a bona fide purchaser without notice.
13. Now in the present case, the Subordinate Judge has found the question whether the transferee from the purchaser at the rent sale had notice of the limited interest of the purchaser at the Court auction, in the negative; the sale in 1898 under Exhibit III purported to be an absolute sale of the lands free from all encumbrances; the parties elected to proceed with the trial without oral evidence; and lastly no ground was taken in the second appeal memorandum about the want of good faith on the part of the transferee and no fresh issue can be allowed to be raised at this stage.
14. I am, therefore, of opinion that as 12 years have elapsed since the date of the transfer under Exhibit III the suit is time-barred under Article 134.
15. This second appeal is dismissed with costs.
16. I agree.