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Baikunthanath Roy and anr. Vs. Ahmedulla and ors. - Court Judgment

LegalCrystal Citation
Subject Limitation
CourtKolkata
Decided On
Reported inAIR1931Cal113
AppellantBaikunthanath Roy and anr.
RespondentAhmedulla and ors.
Cases ReferredDal Singh v. Gur Prasad
Excerpt:
- suhrawardy, j.1. this appeal is against the decree of the subordinate judge of sylhet arising out of a redemption suit. the relevant facts are that a kot-kabala or mortgage by conditional sale was executed in 1889 by brojo nath dey and others in favour of moniram das and others. the plaintiff is the purchaser of a two-thirds interest in the equity of redemption from the heirs of the mortgagors. the due date under the mortgage was the 3rd september 1891. in 1892 the mortgagees brought a suit for foreclosure and obtained a decree in which it was directed that if the mortgage debt was not paid within six months from the date of the decree the mortgagor's right to redeem would be absolutely foreclosed and the mortgagees would acquire an absolute interest in the property and get khas.....
Judgment:

Suhrawardy, J.

1. This appeal is against the decree of the Subordinate Judge of Sylhet arising out of a redemption suit. The relevant facts are that a kot-kabala or mortgage by conditional sale was executed in 1889 by Brojo Nath Dey and others in favour of Moniram Das and others. The plaintiff is the purchaser of a two-thirds interest in the equity of redemption from the heirs of the mortgagors. The due date under the mortgage was the 3rd September 1891. In 1892 the mortgagees brought a suit for foreclosure and obtained a decree in which it was directed that if the mortgage debt was not paid within six months from the date of the decree the mortgagor's right to redeem would be absolutely Foreclosed and the mortgagees would acquire an absolute interest in the property and get khas possession of the same. It appears that this decree was not followed by a final decree but the mortgagees somehow or other obtained possession of the mortgaged property. They sold an absolute interest in that property to the respondent's predecessors in 1910 who conveyed it again to the respondents in 1915. The present suit was brought in 1925 by the plaintiff for redeeming the mortgage of 1889. The main defence in the suit was one of limitation and both the Courts have held that the suit is barred by Article 134, Limitation Act. There was 'another objection raised on the ground of res judicata on which the Court below were not in agreement, the lower appellate Court holding that the plaintiffs' suit was also barred by the principle of res judicata.

2. We have been first addressed; to the question of limitation. It is argued that Article 134 does not apply to the facts of this case and this argument is based on the finding by the learned Subordinate Judge in the lower appellate Court that the fact that two deeds were executed-- one for the property in suit and another for other properties in which the vendors had an undisputed title showed that the vendee had notice.' It is interpreted as meaning that the vendees had notice of the mortgage and therefore on the law to which reference is presently to be made the defendants cannot take shelter under Article 134. It is difficult to interpret the words in the judgment of the Subordinate Judge as meaning that the defendant's predecessor who purchased the property, from the mortgagee had notice that he was purchasing the mortgagee's interest only though he purchased an absolute interest in it. What the learned Judge probably meant to say is that it might be that the defendants had notice of the circumstances that there was a mortgage in favour of the vendors and that he had also notice of the fact that the mortgagees had obtained a foreclosure decree about 20 years ago and were in possession since then, though the defendants in their written statement denied that they were aware of the foreclosure decree. If the defendants or their vendor (the purchaser from the mortgagees) had notice of all these facts, notice could not have been conveyed to them of the existence of the mortgage, but it would create just a contrary impression that the mortgage had extinguished and merged in the foreclosure decree of 1892 and that the mortgagee's were in possession of the mortgaged property apparently by virtue of the decree. The notice of these facts accordingly will not charge the defendants with knowledge of the fact of the existence of the mortgage and it cannot be said that he was a purchaser of the mortgagee's interest though the document of transfer professed to transfer an absolute title. But as the finding of the learned Subordinate Judge is not very clear on the point, I ought to briefly refer to the question of law which has been elaborately argued before us.

3. Article 134, Limitation Act of 1871, was in these words:

To recover possession of immovable property conveyed in trust or mortgage and afterwards purchased from the trustee or mortgagee in good faith for value.

4. In the Act of 1877 the article underwent change of language which has been kept up in the Act of 1908. The article now reads:

To recover possession of immovables conveyed or bequeathed or mortgaged and afterwards transferred by the trustee or mortgagee for valuable consideration.

5. The change in the wording of the law as it stood under the Act of 1871 to as it stands now is that the words in good faith' have been omitted and the word 'purchased' has been replaced by 'transferred.' The article as it now stands therefore requires for its application that the property in suit must have been transferred by the trustee or mortgagee for a valuable consideration. In other words 12 years' limitation applies to cases of recovery of possession of property transferred by a trustee or mortgagee to a transferee for valuable consideration and not to a mere volunteer. Now this article has been differently interpreted in different High Courts and different conclusions have been arrived at as to the object with which the words 'in good faith' were omitted in the Act of 1877. There seems to be a general agreement in all the Courts that these words have been omitted from the article for the purpose of making it applicable to cases of transferees from trustee in good faith as well as to cases of transferees who take the transfer in bad faith, i.e. with knowledge of the limited interest of the transferor. But in the case of mortgagees the Courts have differed and different views have been taken. In some cases it has been held that the article applies to the cases of transferees from mortgagees irrespective of whether they were or were not aware of the mortgagee's limited interest in the property provided they purported to purchase the absolute interest in the property: Keshav Raghunath v. Gafur Khan A.I.R. 1922 Bom. 234 Naunihal Singh v. Alice Georgina Skinner : AIR1925All707 . The latter case was overruled by the Judicial Committee in Skinner v. Naunihal Singh A.I.R. 1929 P.C. 158 but the observations made with reference to Article 134 by the High Court were not dissented from. But the Allahabad High Court generally has taken the view that the article does not apply to the case of transferee from mortgagee with knowledge of the mortgage: Drigpal Singh v. Kallu [1915] 37 All. 660. The Madras High Court has in majority of cases held that the article applies to cases of both honest and dishonest transferees : see the last case of that Court, Rakku Shetti v. Rama Chandrayan A.I.R. 1926 Mad. 81. The Lahore High Court has followed the Allahabad High Court and has agreed with it in the application of Article 134, though in one case of that Court, viz., the case of Wazir Chand v. Nathu Ram A.I.R. 1924 Lah. 468 Sir Shadi Lal, C. J., expressed his opinion:

If the Article 134 alone were regarded and the matter were res integra it would be hard to resist the conclusion that transferees from a trustee and the transferees from a mortgagee are placed in the same position and as admittedly the trustee's transferee comes within the shelter of the article even in the absence of good faith the mortgagee's transferee in spite of the knowledge of the defect in his absolute title would appear to be safe from attack from the mortgagor after the lapse of 12 years.

6. The learned Chief Justice then proceeded to observe:

An examination of the authorities cited at the Bar indicates that the almost universal view is that only a transferee with a bonafide belief at the time of the conveyance can claim protection of Article 134 and that in other cases the suit to redeem against him is governed by Article 134. We bow to the weight of authority,

and he bowed to weight of authority. The Bombay High Court has taken different views on different occasions and strangely enough by the same learned Judges. I do not propose to deal with the cases as my learned brother will examine them in his lucid way beyond indicating that there has been a divergence of opinion upon this point.

7. I purpose to construe the article as it now stands in the light of its past history with reference to the case law on the subject. I have pointed out that the words 'in good faith' were omitted from Article 134 as it stood in 1871 by the Limitation Act of 1877. The later Act effected one other alteration in this connexion which cannot be overlooked and that is in Article 148, Lim. Act. In 1871 that article stood 'as against a mortgagee to recover possession of immoveable property mortgaged.' In the Act of 1877 it read: 'as against a mortgagee to redeem or recover possession of immoveable property mortgaged.'

8. I am not sure if the change in the language has affected any real alteration in the law for a suit to recover property from a mortgagee can only lie after redemption or after the mortgage debt has been satisfied by the usufruct. I refer to this alteration because it is argued at the Bar that the introduction of these words in Article 148 has a bearing on the application of Article 134 in the case of mortgage. I have not been able to discover in the cases which have held that Article 134 does not apply to the case of a transferee with notice of mortgage any reason legal or logical in support of this view. Some cases have proceeded upon the significance attached to the word 'purchaser' by the Judicial Committee in Radha Nath Das v. Gisbourne & Co. [1871] 14 M. I. A. 1. But the word 'purchaser' there was explained in connexion with another provision of the Limitation Act and that word does not find a place in the present Article 134. In some cases it has also been argued that when a person purchases an absolute interest from a mortgagee knowing that his transferor has no higher right than that of a mortgagee he practically purchases the right of the mortgagee and not the absolute interest. But the application of the article does not depend upon what the transferee might have believed he was purchasing but on the nature of the transfer which must be higher than that of the mortgagee in order to attract the application of the article : Skinner v. Nunhilal Singh A.I.R. 1922 P.C. 158. Besides the same argument applies in the case of a purchase from a trustee but it is conceded on all hands that Article 134 covers equally purchases with or without notice of the trust. All these reasons do not appeal to me for the construction which has been attempted to be put on the plain words of the article. In Abhiram Goswami v. Shyama Charan Nandy [1909] 36 Cal. 1003 the Judicial Committee relying upon an old case of this Court said:

Statute of limitation like all others ought to receive such construction as the language in its plain meaning imports.

9. Now according to this rule of interpretation there does not seem to be any difficulty in holding that Article 134 applies equally to cases of transfer by a trustee and that by a mortgagee for valuable consideration. It puts the trustee and the mortgagee on the same 'footing and speaks of them in the same breath. In construing it as applying to transferees from trustees with or without notice and making it applicable to cases of mortgagees only when the [transferee takes without notice of the mortgage it will be not only reading something into the section which it does 'not say but reading some thing into it which has been intentionally and designedly omitted by the legislature.

10. There is no decision of this Court directly in point, but Article 134 has received consideration in several cases of this Court. In Ram Kanai Ghose v. Hari Narayan Singh Deo Bahadur [1905] 2 C. L.J. 546 Mukerji, J., at p. 552 expressed himself in these words:

Even if it were otherwise and even if there had been evidence to show that at the time the lease was granted, the lessee took the property with knowledge that the lessor was acting in excess of his powers, I could not assent to the proposition that this circumstance would in any way affect the application of Article 134. Article 134 refers to purchasers from a trustee for valuable consideration and not of purchasers in good faith and for value. To restrict the application of the article to purchasers in good faith, would in my opinion be to put an unwarrantable limitation upon its scope, which is in no way justified by its language. I am fortified in this view by an examination of the corresponding Article 134, Lim. Act of 1871, which was restricted expressly to purchasers in good faith and for value. When the Act of 1871 was replaced by the Act of 1877, the legislature omitted the words ' in good faith ' and the conclusion seems to me to be irresistible, that this alteration, as also the corresponding alteration in Section 10 of the Act was made designedly with a view to preclude the litigation likely to arise from the use of the words ' in good faith ' and to protect a purchaser for valuable consideration from a trustee, whether such purchasers had or had not notice of the trust at the time of the transfer. To hold that this material alteration in the language of this provision of the law, has left its effect unaltered, appears to me to ignore all sound canons of construction.

11. The learned Judge made this observation in connexion with transfer by a trustee, but they apply with equal force' to the case of a transferee from a mortgagee. Though the decision in the case as applying the article to the case of a lessee from a trustee is no longer good law in view of the decision of the Judicial Committee in a later case Isswar Shyam Chand Jiu v. Ram Kanai Ghose [1911] 38 Cal. 526 these observations of the learned Judge are based on sound reason and have not so far been questioned.. In my judgment the alteration of Article 148 by fixing a definite period for redemption does not affect the clear, unambiguous meaning of Article 134. The same contention about the scope of Article 134, with reference to Articles 140 and 148 arises out of the decision of the Judicial Committee in the case of Skinner v. Naunihal Singh. The facts of that case were very peculiar and the Judicial Committee were not called upon to determine the question of the application of Article 134 to cases of transferees with notice of mortgage. But in view of the circumstances of that case they observed:

It is conceded and is plain that Article 134 does not protect the transferee of a mortgage by express transfer, and it appears to their Lordships idle to suppose that it protects a person who has taken a transfer only of a mortgage, but has taken it without knowledge mistakenly supposing that he was getting something better in circumstances like the present, when he cannot maintain his superior title by reliance on any period of limitation.

12. In another part of that judgment they observed that if the transfer by the mortgagees had taken place at a time when the equity of redemption was in the mortgagor Article 134 would apply. But in the circumstances of that case the mortgagee purported to purchase the equity of redemption from persons who had only the life-interest in it and as under the will of the owner of the property there were several life-interests created with remainder to the plaintiff they held that in those circumstances the plaintiff's right was not barred by Article 131. In my judgment, giving a plain meaning to the words of the section, it would apply both to transferees from trustees as from mortgagees provided the transfer was for valuable consideration and of absolute title.

13. The learned Subordinate Judge has relied in support of his view on the dicta in Narain Das Arora v. Hazi Abdur Rahim [1920] 47 Cal. 866 but that was a case relating to trust though the law was laid down in general terms. In this view of the matter I agree with the learned Subordinate Judge that Article 134 applies to the case though not for the reasons given by him and the plaintiffs' suit is barred by limitation. I accordingly dismiss this appeal with costs. It is not necessary to discuss the second point raised.

Costello, J.

14. I have been invited by 'my learned brother to add a few observations with regard to the case law applicable to the main point which was argued before us in this appeal. The point in a sense is a simple one, at any rate, it is a short one because it resolves itself solely into the question whether or not in the case of transfer of immovable property by a mortgagee for valuable consideration the operation of Article 134, Schedule 1, Lim. Act 1908, is dependent upon knowledge or want of knowledge on the part of the transferee that the title to the property which purports to be transferred to him is defective. In the case now before us which in form was a suit to redeem a kotkobala or mortgage by conditional sale and in which the plaintiff was successor in title of the original mortgagor, the defendants contended that they had acquired the property by a succession of transfers from the original mortgagee; and in such circumstances the suit having been instituted more than 12 years from the date of such transfer they were entitled to claim protection under the provision of Article 134. It seems that the finding of fact of the learned Subordinate Judge of Sylhet who heard the case on appeal from the Munsif is that the transferee did get notice of the circumstances attached to the property. It is a little doubtful upon the wording used by the learned Subordinate Judge as to whether or not he intended to express the view that the transferee was cognizant of the history of the matter in such a way as to give him reason to believe that he might be acquiring an absolute title to the property or whether the learned Subordinate Judge was holding that the transferee had actual knowledge that his transferor had not the right to gave him an absolute title to the property. The learned Subordinate Judge however puts the question of notice on one side by holding that as a matter of law it is immaterial for the purpose of applying Article 134 whether the transferee had notice in that sense or whether he had not.

15. It is unfortunate and perhaps a little surprising that there is no clear decision of this Court upon this question as to whether or not absence of bona fides or knowledge on the part of the transferee debars him from taking shelter behind the article in question. When I say there is no decision of this Court I mean that there is no decision which is directly in point in so far as the question of transfer from a mortgagee is concerned. My learned brother has already pointed out that there are a large number of decisions of other High Courts in India which are not only irreconcilable as between the decisions of one Court and another but in some cases are inconsistent as between one decision of a particular High Court and another decision of the same High Court. It is tolerably, if not wholly, clear to my mind, looking at the decisions to which we have been referred, that all the Courts including this Court are of opinion that the matter is beyond doubt in so far as transfers from trustees for valuable consideration are concerned. But it is only when one comes to consider whether the same reasoning should be applied to cases of transfers from mortgagees that we find ourselves in a region of uncertainty and inconsistency as regards the authorities. In these circumstances I am disposed to agree with my learned brother that it is desirable that one should go back to the first principles for the construction of any section or article of the Limitation Act. It is said that the right course is to give to the enactment such an interpretation as it bears from the plain meaning of the language. I must confess I am not altogether free from doubt as to what the right view in this matter is. But such uncertainty as exists in my mind arises from the fact that on the face of it one is reluctant to think that the legislature could have intended that persons who act with lack of bona fides or who take the transfer knowing full well that the transferor had no power to give an absolute right could nevertheless have some protection or otherwise provided by the provisions of Article 134. But we have to consider an act of the legislature not by reference to any view that we might hold as to whether or not any particular decision is just or desirable or right or proper but upon a careful consideration of what the legislature has in fact said. In this particular case from one point of view we are assisted by the fact that this particular provision of the Act is not in essence an original provision but is an emendation of a provision which originally found its place in the Act passed so long ago as 1859. It was pointed out to us in the course of the argument, perhaps it would be more accurate to say that it was pointed out by us, that there must have been some reason for the change that was made in the year 1877 in the language of Article 134. In the previous Act the article was read:

To recover possession of immovable property conveyed in trust or mortgage and afterwards purchased from the trustee or mortgagee in good faith and for value,

and the time for the period of limitation began to run or said to be the date of the purchase. In the Act of 1877 the verbiage was altered and in that Act the article read in the form in which it appears in the Act of 1908:

To recover possession of immovable property conveyed or bequeathed in trust or mortgage and afterwards transferred by the trustee or mortgagee for a valuable consideration

the significant feature being that the words ' purchased from ' was changed into ' was transferred by ' and the all important qualification ' in good faith ' was omitted. It does seem to me on the face of it that this important alteration must have been made for a set purpose by the legislature and the omission must entail certain important consequences. I do not think it necessary to deal with all the cases cited before us but only some of those cases which undoubtedly decided that in the cases of transfers by trustees the question of good faith of the transferee is entirely immaterial. I ought however to refer to a case not so referred to in the argument before us, namely the case of Panda v. Vithu [1895] 19 Bom. 140. There apparently an attempt was made to draw some kind of distinction between bona fides ' and actual knowledge and the learned Chief Justice, Sir Charles, Sargent referring to Article 134, Lira. Act of 1877 to which I have already referred and which is the same as Article 134 of the present Act said:

Although the article does not in our opinion require the purchaser to be bona fide in the sense of being made without constructive notice of the restricted nature of the vendor's title, we agree with what is said in Bhagaban Sahai v. Bhagaban Din [1898] 12 All. 387 as to the remark of Lord Cairns in construing Section 5, Act 14 of 1859, in Radha Nath Doss v. Gisborne & Co. (7) being equally applicable to the article under consideration, viz., that by a purchaser must be meant a person who purchases that which is de facto a mortgage upon the representation made to him and in the belief that it is an absolute right-- a requisite, which it is to be observed, Lord Cairns treats as quite distinct from what he mentioned to be the second requisite to enable Section 5 to be applied, viz. that the purchase should be bona fide.

16. Whether or not that it is right that a distinction of that kind should be made, one would feel inclined to think that if the transferee had the knowledge, whether constructive or actual, it can scarcely be said that he was acting in good faith in purchasing an absolute interest in a property as to which the mortgagee had no right to convey such title. I am disposed to think that the right view of this matter is that stated by Mookerjee, J., in the passage which was read by my learned brother in the course of his judgment. The passage appears in the ease of Ram Kanai Ghose v. Hari Narain Singh Deo Bahadur where the learned Judge pointed out that Article 134 referred to purchasers from a. trustee for a valuable consideration and of purchasers in good faith and for value; and said that to restrict the application of the article to purchasers in good faith would in his opinion be putting an unwarrantable limitation upon its scope which was in no way justified by its language. Then he went on to point out that the conclusion seemed to be that this material alteration was made designedly with a view to preclude litigation to arise from the words 'in good faith.' It is true as my learned brother has pointed out that this case was overruled on other points. But it is obvious from what was said by the learned advocate who so ably assisted us with his arguments that from that time afterwards there is no dictum of this Court which in any way conflicts with the proposition laid down as long ago as 1905 by Mookerjee, J. I now propose to refer to the decisions of other Courts which have some bearing upon this matter. The matter was considered in Sriram v. Matwala Ram A.I.R. 1923 Lah. 319 in which appears the judgment of Broadway, J., which is referred to by my learned in the course of his judgment. Broadway, J., said:

The real question appears to be whether a transferee from a mortgagee who claims to be the owner of the property must, in order to avail himself of Article 134, show that he neither had knowledge nor reason to believe that his transferor' title in the property transferred was not a full proprietary one. It seems to me that if it can be shown that the transferee from a mortgagee knew that the title of his transferor was not free from doubt and such transferee took no steps whatever to clear up that doubt, he can hardly claim the benefit of Article 134.

17. The same kind of view was expressed by the Chief Justice of the same Court and Le Rossignol, J., in Wazir Chand v. Nathu Ram where they said:

It is only a bonafide transferee from a mortgagee who can claim the protection of Article 134, Schedule 1 to the Lim. Act.

18. And they further said:

That in the absence of good faith a suit against him by the mortgagor to redeem the mortgage property would be governed by Article 148.

19. In my opinion it is a little difficult to see how the learned Judges of the Lahore High Court took that view of the matter having regard, as I have already said, to the fact that the words 'in good faith' were apparently or deliberately omitted from the Act of 1877. The Allahabad High Court tin the case of Naunihal Singh v. Alice Georgina Skinner, seems to have taken a similar view of the article and came to the conclusion that it is designed for the protection of a transferee who has been led by the mortgagee to believe that he is acquiring not merely the mortgagee's right but full proprietory title. Kan-haiya Lal, J., at p. 822, of the report said:

That the object of Article 134 is to protect transferees for value who have purchased their interest larger than that possessed by the transferor and have been allowed to remain in possession and enjoyment of such larger in erest for a period of more than 12, years. In the matter of the mortgaged property so transferred it controls Article 148, Lim. Act, in the same way as it controls the Article 140. If the mortgaged property is in possession not of the mortgagee but in that of a transferee from him whose claim to have purchased a larger interest therein for consideration, what a man is not allowed to do under Article 144, Lim. Act he cannot be allowed to do under Article 140 after such possession has been held for more than 12 years.

20. That is a general observation with regard to the absence of the words in good faith' in Article 134 with which the learned Judge was dealing. As my learned brother pointed out one of the curious features about the reported decision is the inconsistency displayed by the learned Judges of the Bombay High Court because we find that in the case Vishvanath Bhiva v. Tukaram Vithu A.I.R. 1925 Bom. 417 the learned Chief Justice Sir Norman Macleod, J., and Coyajee, J., came to the conclusion that Article 134 does not apply to a suit by a mortgagor to recover possession of the mortgaged property from an alienee of the mortgagee who has taken with notice of the mortgage, and they held in that case that such a suit was governed by Article 148 of the Act. On the other hand, in the case of Keshab Raghunath Joshi v. Gafur Khan the same learned Judges decided that when a mortgagee sells the mortgaged property as an ostensible owner and there is valuable consideration for the sale, the right of the purchaser becomes unassailable by the mortgagor by the lapse of 12 years from the date of the purchase under Article 134, Lim. Act. And it seems quite clear from the judgment of the Chief Justice that they were of opinion that the question of good faith of the transferee was immaterial for we find at p. 907 that Macleod, C. J., said:

The Limitation Act makes no provision for the case of a transferee who gives valuable consideration at the time of transfer from an ostensible owner but, finds later on that his transferor was only a mortgagee and not owner of the property transferred. There does not seem to be any direct authority on this point. But unless direct provision is made in the Act that on the acquisition of such knowledge the time which has previously began to run against the mortgagor should stop, it is difficult to say that the latter knowledge on the part of the transferee would prevent time running in his favour. Good faith is no longer required on the part of the transferee;

and he pointed out the distinction in the language of articles as it appears in the various Limitation Acts. Coyajee, J. said:

When a mortgagee sells the mortgaged property as an ostensible owner and there is valuable consideration for the sale, the right of the purchaser becomes unassailable by the mortgagor by lapse of 12 years from the date of purchase. The mortgagee may be dishonest, the purchaser may not make any enquiry as to his vendor's title, the mortgagor may be ignorant of the sale of his property by the mortgagee; these facts no longer affect the rights of the purchaser who has given valuable consideration. Article 134, Lim. Act, required good faith on his part. That condition was however removed by Act 15 of 1877 and is not reimposed by Act 9 of 1908. The language of the enactment now in force being clear, the plaintiffs' suit must fail.

21. It is quite obvious that the learned Judge overlooked the other decision to which I have referred, namely, decision in the case of Viswanath v. Tukaram. Again in the Madras High Court there are also conflicting decisions. In 1925 in the case of Lakshmana Aiyar v. Sankarappa Pillai A.I.R. 1926 Mad. 311. Spencer and Odgors, JJ., came to the conclusion after reviewing some authorities:

That the question whether the transferee from a mortgagee took an absolute interest or only a mortgage interest is a question of intention. Both seller and the purchaser must have honestly believed that the entire interest of the owner was being transferred by the document.

22. That decision was given in October 1925 and it seems to me to be inconsistent with the decision given in March 1925 in the case of Rukku Shetti v. Ram Chandraya, the headnote of which is:

Where a mortgagee in possession transfers the property under a sale deed for consideration 10 another and puts him in possession and what was bargained for, by the transferee was an absolute sale, though he knew that the transferor had only a mortgagee's interest, on a suit instituted by the mortgagor for redemption more than 12 years from the date of sale, held that Article 134, Lim. Act, applied to the case even though the vendee was not a transferee in good faith but knew that the vendor had only a mortgagee's interest, and that the suit was barred by limitation.

23. I emphasize the word 'knew' as it' is used in conjunction with the words. 'good faith' because it is clear that so far as the learned Judges who tried the case are concerned it was never present in their mind that for the purpose of a. right interpretation of Article 134 any differentiation should be made between the. qualification in 'good faith' and the. qualification 'want of knowledge' or something of that kind. Some of the Courts have held that if a transferee knew of the defect of the transferor's title that in itself constituted want of good faith; and I am inclined, with great respect, to agree with that view of the matter. At the same time however I am not altogether sure that it would not be right to draw some kind of differentiation between constructive notice and actual knowledge. Ramesam, J., in dealing with the possible cases which might arise, put the matter in this way:

Where the deed of transfer is a sale deed and. what was bargained for by the transferee is also an absolute sale though he knew that the transferor had only a mortgagee's interest. In such a case though under the Acts of 1859 and 1871 Article 134 may not apply, I think under the Act of 1877 and 1908 it applies. This is also the view taken by the Calcutta High Court in Ramkanai Ghose v. Rai Sree Sree Hari Narain Deo Bahadur, which was also a case of trustee.

24. Ramesam, J., is of course referring to the observation of Mookerjee, J., to which I have already referred. Then Ramesam, J., goes on to say,:

Seeing that the Privy Council have come to the same conclusion in Subbaiya Pandaram v. Mahommad Mustafa Marcayar A.I.R. 1923 I.C. 175 I do not think any value can be attached to the dissent from the decision in Rankanai Ghose v. Rai Sree Sree Hari Narain Singh Deo Bahadur, and in Singavam Chettiar v. Kalyanasundaram Pillai [1914] 26 I.C. 1.

25. Looking at the matter as a whole I think we ought to take the view that first of all what appears to be a deliberate omission of the words 'good faith' in the later Act must be given effect to; secondly, that all the cases show a unanimity or consensus of opinion that in cases of transfers from trustee the question of good faith or knowledge is immaterial. I can see no reason why looking at the article itself we ought draw a distinction between cases of transfer from trustees and those from mortgagees. I may here refer to a decision of the Oudh Judicial Commissioner's Court, namely, the case of Dal Singh v. Gur Prasad [1909] 12 A.C. 84 where at p. 253, Tudball, J., referring to Article 131 said:

It is unnecessary to go into the question of bona fides. Article 131 has rendered all inquiries on that point unnecessary.

26. Taking the words of the article as it stands therefore, and endeavouring to give them their plain meaning and not reading into the article anything more than what actually appears I take the view that the bona fides of the transferee is immaterial. Therefore, if the transferee has merely constructive notice of the defect of the transferor's title, ha is not precluded from taking shelter behind the provision of Article 131. Whether actual knowledge on the part of the transferee is immaterial is perhaps a question on which there remains still some doubt. In the present case we need not definitely decide that point for the reasons which my learned brother has given as it appears that it is not altogether clear from the finding of the learned Subordinate Judge how far the transferee had knowledge of anything more than what the history of the case indicated. It may well be that what the learned Subordinate Judge intended to find was that the purchaser had not had any greater knowledge than that there was a possibility of some fraud in the title of the mortgagee. Agreeing with my learned brother I hold that this appeal must be dismissed with costs.


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