1. One Jugal Keot was the owner of two-annas undivided share in a ferry ghat. On 17-5-1896, he borrowed money from one Jatadhari Thakur and mortgaged in usufructuary form his two annas undivided share in the ferry ghat to secure the said loan. It is the plaintiff's case that Jugal later on redeemed the mortgage and then sold his undivided two-annas share to the plaintiff on 8-7-1935. Thereafter she went to take possession but was resisted by defendants 1 to 7 with the result that she instituted this suit, which is a suit for declaration of her two annas share and for recovery of possession. The suit was filed on 20-7-1938. The finding of the last Court of fact is that the story that Jugal redeemed the mortgage which he had executed in favour of Jatadhari, was not a true story. The position, therefore, is that the plaintiff has purchased the equity of redemption which Jugal had in the property. The Court of appeal below on the finding that Jugal had not redeemed the mortgage in favour of Jatadhari has given the plaintiff a declaration that she has the equity of redemption in the two annas share in the ferry ghat which is claimed in the suit and that she is entitled to redeem defendants 1 to 7 with respect to that share. A second appeal was preferred by defendants 1 to 7 to this Court, but it was dismissed by Rahman J. who granted leave to appeal under Clause 15, Letters Patent. The question which was pressed before our learned brother as also before u3 by the defendants-appellants is the question of limitation. They contend that the suit is barred by time inasmuch as the proper Article to apply would be Article 134, of the Schedule to the Limitation Act.
2. Jatadhari had purchased 14 annas share in the ferry ghat from the other owners and he was the usufructuary mortagee in respect of the two-annas share which belonged to Jugal. It is said that Jatadhari mortgaged the sixteen annas share in the ferrey ghat to Karali Prosad Banerjee and others by executing a simple mortgage in the year 1909. The mortgage deed has not been produced. We do not know the date of the mortgage nor the terms thereof, that is to say, whether the mortgage in favour of Karali Prosad Banerjee and others was a mortgage of fourteen annas share in the ferry ghat of which Jatadhari was the owner and a sub-mortgage in respect of the remaining two annas share which is in dispute in this appeal in respect of which Jatadhari was only a mortgagee, but we will proceed to discuss the question of limitation on the assumption that the mortgage which is admitted by the appellants to be a simple mortgage was executed in the year 1909 by Jatadhari in favour of Karali Prosad Banerjee and others and that it was a mortgage by Jatadhari of the whole of the 16 annas share of the property on an assertion by him that he was the owner thereof. In 1922, Karali Prosad Benerjee and others instituted a suit on the mortgage and at the sale held in execution of the decree in the said mortgage suit in 1924 defendants 1 to 7 purchased the right, title and interest of Jatadhari in the ferry ghat. We would further assume that the sale certificate purported to convey to the purchasers, namely, defendants 1 to 7, 16 annas share in the property, that is to say including the ownership in the two annas share which belonged to Jugal. After making their purchase defendants 1 to 7, took delivery of possession in respect of the disputed share in 1927. That is the finding of the lower appellate Court. On these facts and assumptions which we have made in favour of the defendants we do not think that Article 134 would be applicable. The relevant portion of that Article reads thus:
1st column 2nd column 3rd columnTo recover possession 12 years.... The date whenof immovable property the transfer be-mortgaged and after -comes known towards transferred by the plaintiff. the mortgagee for valuable consideration.
We would also assume that the plaintiff which, would include his predecessors-in-title, namely, Jugal, became aware of the mortgage #which Jatadhari had executed in favour of Karali Prosad Banerjee and others beyond 12 years of the suit.
3. The question therefore' for consideration is whether a simple mortgage executed by the mortgagee on an assertion that he is the full owner of the property mortgaged would come within Article 134, Limitation Act. We are of opinion that that case would not come within Article 134 for the following reasons. That Article contemplates a suit to recover possession from the transferee of the mortgagee. We are leaving out of consideration that portion of the Article which deals with transfer by a trustee because that portion is not directly relevant to the ease before us. The transfer by the mortgagee therefore must be a transfer with possession to the transferee, at least a transfer which would entitle the transferee to get possession from his vendor. The view we are taking is supported by the following observations made by Mookherjee J. in Charu Chandra Pramanik v. Nahush Chandra Kundoo 10 A.I.R. 1923 Cal. 1.
The appellant is consequently restricted to the first portion of the article, which contemplates a suit to recover possession of immovable property conveyed or bequeathed in trust and afterwards transferred by the trustee for a valuable consideration. This clearly refers to a case where the transfer by the trustee is accompanied by delivery of possession to the transferee so as to render possible and necessary the institution of a suit for recovery of possession, for instance, in cases of sale, usufructuary mortgage, lease and exchange.
Although the learned Judges were dealing with the first part of Article 134 which deals with a transfer by a trustee, those observations would equally apply to the second part of that Article which deals with the transfer by a mortgagee. As the mortgage by Jatadhari in favour of Karali Prosad Banerjee and others was a simple mortgage, Karali Prosad Banerjee and others, the mortgagees, had no right to take possession. In fact on the basis of the mortgage they did not take possession. That is the first reason. The second reason why we hold that Article 134 is not applicable is that that Article can only apply to a case of transfer, that is to say, case where title is conveyed by act of parties and not by reason of execution of a decree of Court. Defendants 1 to 7 therefore cannot rely on their purchase at the Court sale in 1924. We accordingly hold that Article 134 is not applicable to the facts of this case. We think that the proper Article to apply in this case would be Article 144. Jatadhari or his heirs were in possession up till the time when defendants 1 to 7, took possession through Court on the strength of their purchase at the sale held in execution, of the mortgage decree which Karali Prasad Banerjee and others had obtained against Jatadhari. Therefore Jatadhari being the usufructuary mortgagee from Jugal his possession or the possession of his heirs would not be adverse to Jugal. The possession of the defendants would therefore become adverse only from the time when they took possession through Court and that was within 12 years of the suit. We accordingly hold that the suit is not barred by limitation and our learned brother was right in affirming, the decree passed by the learned Subordinate Judge on appeal. The result is that this appeal is dismissed with costs.