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TMI Blog1917 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... r. The plaintiff's mortgagees acting as full owners executed several usufructuary mortgages of items 2 and 3 under which they have been out of possession of these items since 1862 and 1894 respectively. The most recent mortgages of both these items were more than twelve years before suit, but the present mortgagees did not get possession under these mortgages from the prior mortgagees as regards item 2 until 1900 and as regards item 3 until after the institution of the present suit. 2. As regards both items the suit is covered by the language of Article 134 taken in its natural sense, but it is said that, as the plaintiff had no occasion to sue the present transferees by way of mortgage from the original mortgagees until they took possession as regards item 2 in 1900 and as regards item 3 after the institution of this suit, the article does not apply. With regard to the last case it must be remembered that possession was not with the mortgagees but with prior transferees from them, so that for over thirty years the mortgagors if they wished to recover possession of the suit properties would have had to sue transferees from the mortgagees. 3. This result, it is said, may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probably substituted for conveyance to cover oral sales, but there is no reason to suppose that it was intended to depart in other respects from the starting point provided in Section 25 of the English Act. To adopt this construction in my opinion is simply to alter the statutory starting point and to go back to the date of adverse possession which was the old law modified by the Act of 1834. 4. I feel no less difficulty in holding that the present article applies only where possession is taken on the date of the transfer, as this is inserting words which are not there and would practically exclude nearly all the cases which would otherwise come within the article as possession is rarely taken by the transferee on the date of the transfer. Even supposing Section 25 of the English Act of 1834 to be susceptible of such a construction, I do not think that would affect the present question. 5. Mr. Lewin points out that a strict construction of Section 25 would bar reversionary heirs whose right to sue might not arise until long after the date of the conveyance, and he founds an argument on the fact that Section 25 is in form a proviso on Section 24 which imposes the same lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of the suit and to have enjoyed it during his life-time, and it was held that a suit against his son who took under the settlement after his death was barred by Section 25. The decision was reversed on the ground that the terms of the settlement were not proved, Smith v. Smith I.L.R. (1876) Ir. 206 C.A but it would appear from the observations of Darby and Bosanquet, page 444 that the appellate Court agreed with the lower Court that the suit would have been barred under Section 25 if the settlement had been proved. Smith v. Smith I.L.R. (1876) Ir. 206 only decides that there is no dispossession until some one else takes possession. In St. Mary Magdalen, Oxford v. The Attorney-General (1857) 6 H.L.C. 189 : 10 E. R. 1267 there is nothing in their Lordships' judgments to recognise the contention raised for the respondent, and assuming however that this is the correct construction of Section 25 of the English Act, Section 16 (V) of the Indian Act of 1859 was not appended as a proviso to any previous section but was wholly self-contained, and, in the language of their Lordships in Lala Soni Ram v. Kanhaiya Lal 25 M.L.J. 131, as regards other articles of the English and India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the starting points prescribed under Article 10 was to be found in the case, and in these circumstances their Lordships applied the residuary article. Here however we have the date of the instrument of transfer which is, as I read it, the prescribed starting point under Article 134. All that was decided in Rungiah Gounden and Co. v. Nanjappa Row I.L.R. (1908) M. 780 was that a decree directing the sale of mortgaged property in default of payment of the mortgaged debt on or before the date fixed in the decree was not a decree directing payment of the amount to be made at a certain date, within the meaning of Article 179, column 3, paragraph 6 (which I should have thought it obviously was not) and that consequently the application did not come within the article and must be governed by Article 178. This in my opinion is no authority for giving the go-by to the starting point prescribed in Article 134 for this particular class of suits by refusing to apply the article to the bulk of the suits falling under it and treating them as governed by some other article. I may add that I do not think any argument can be founded on the fact that the articles are printed in three columns. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitations which have been placed in modern times on the operation of the statutes of limitation have been based on a construction of the language of the particular sections and not on any such general principles. I may add that I see no great hardships in the present case. The mortgagees in this case had parted with possession to transferees more than thirty years before suit and had never retaken it, and the mortgagors might at any time have ascertained the extent of the incumbrances they had created by reference to the Registration Office of the District. My answer is that in this case the mortgagors are barred. Abdur Rahim, J. 9. The questions referred to the Full Bench relate to the construction of Article 134 of the Limitation Act which has been the subject of much discussion. It is in these words: To recover possession of Immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration 12 years, (from) the date of transfer. The article embodies certain alterations of the similar provisions of the previous Limitation Acts. In the first place, it is meant to apply not merely to purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as stated in Lewin on Trusts at p. 1125. No possession by a purchaser for valuable consideration short of the statutory period will be a bar. 11. I should therefore answer the first question in the negative. 12. As regards the second question, I would answer it by saying that time will run from the date when the transfer is completed by the transferee being given possession. 13. The third question assumes the position that the mortgagor was not entitled to obtain possession from the mortgagee at the time of the transfer. It was strongly suggested in the course of the argument that in such a case Article 134 will not apply and that time will not run at all until the mortgagor's right to obtain possession from the mortgagee has accrued. Article 134, as has been pointed out in more than one decision, does not apply to cases where a trustee or a mortgagee makes the transfer in pursuance of the power vested in them in such cases the transferee becomes merely an assignee of the trust or mortgage and cannot claim any higher position see Vythilingam Pillai v. Kuthiravattah Nair I.L.R. (1906) M. 501 and Ram Kani Ghosh v. Raja Sri Sri Hari Narayan Singh Deo Bahadur (1905) 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of the transaction. T.V. Seshagiri Iyer, J. 16. Although a large number of questions were submitted for the consideration of the Full Bench the arguments related only to two points: (a) whether the plaintiffs are bound to pay a sum of Es. 9,000 to defendants 5 and 8 before redeeming the mortgage; (b) whether they are bound to pay them a further sum of ₹ 125. The facts which raise these two questions are briefly these: The plaintiffs are the owners of the property. They mortgaged items 2 and 3 for ₹ 1,000 to defendants 1 to 4 in the year 1862. It was a usufructuary mortgage, and defendants 1 to 4 took possession under the mortgage. In the year 1882, these defendants notwithstanding they were only mortgagees dealt with the property as if they were full owners thereof and gave a mortgage of item 2 to one Poker; in 1886 one Haji redeemed Poker. The 5th defendant redeemed Haji and got possession in 1900. From the year 1886 to 1900 Haji held possession under a mortgage for ₹ 125. Consequently, he acquired a right to be redeemed on the payment of that amount. The 5th defendant who has stepped into the shoes of Haji is entitled to claim that right. Mr. Sund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows (a) that the suit must be to recover possession; (b) that the properties sought to be recovered must have been first mortgaged and (c) that it should have been transferred by the mortgagee for valuable consideration. I have omitted the words relating to conveyance and trust in this analysis. The question then is, what is the meaning to be attributed to the word 'transfer' in the first column? If the suit is to recover possession it would not prima facie, lie against a transferee who has not obtained possession. It follows therefore that it is a pre-requisite of a suit under this article that the transferee from the mortgagee must have obtained possession. The word 'transfer' in this column does not simply mean a paper conveyance, but the transfer of possession. If the term 'transfer' is used in column (1) in that sense, it necessarily follows that the word 'transfer' in column (3) has the same meaning. The legislature in speaking of the date of the transfer in column (3) must have had in mind, the transfer with the attributes which that term possesses in column (1). In this view, time does not begin to run until the transferee has taken possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spasser was in possession for less than twenty years and then re-linquished possession, the law presumed that the rightful owner was in possession immediately after. In answer to the argument that when once time had begun to run, nothing can stop it, his Lordship stated: There is not, in their Lordships' opinion any analogy between the case supposed and the case of successive disabilities mentioned in the statute. There the statute continues to run because there is a person in possession in whose favour it is running. Parke Baron's observations in Smith v. Lloyd (1854) 9 Ex. 562 (Wels., H. and G. 562);28 L.J. Ex., 194: We are clearly of opinion that the statute applies not to want of actual possession by the plaintiff, but to cases where he has been out of and another in, possession for the prescribed time. There must be both absence of possession by the person who has the right, and actual possession by another, whether adverse or not, to be protected, to bring the case within the statute. We entirely concur in the judgment of Chief Justice Blackburne in M'Donnel v. M'Kinty (1847) 10 Ir. L.R. 514, and the principle on which it is founded, were accepted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The answer to the second question is that time begins to run only after the date of possession. I do not think it necessary to give an answer to the third question, as it does not arise for consideration in this case. V.V. Srinivasa Iyengar, J. 25. Article 134 of the Limitation Act has not been easy to construe, nor is it easy to apply in concrete cases. Soon after the omission in 1877 of the words in good faith which qualified the word 'purchasers,' in the Limitation Act of 1871, a question arose which is not yet settled beyond controversy, whether a transferee with actual knowledge of the limited title of his transferor was entitled to the protection of the article, especially when such transferor had under no circumstances power to transfer a larger interest than he had. There was no apparent reason for treating him differently from his transferor but yet the language of the article was plain. It may be that the legislature desired in the case of transferees for value to prevent an inquisition into circumstances attending the transfer or the state of knowledge of the transferee after twelve years from the date of the transfer. Mr. Justice Ayling and myself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has omitted the words, 'in the absence of a contract to the contrary,' with a view to prevent the mortgagor from contracting himself out of his right of redemption at the time of the mortgage. Whatever doubts there may have been prior to the decision of the Privy Council in Bakhtawar Begam v. Husani Khanam 26 M.L.J. 474 as to whether the mortgagor was at liberty to redeem before the time limited for payment, now, there can be no question that he cannot do so unless he reserves such a right by the mortgage contract. No doubt it may be said that a mortgagor should not bind himself not to redeem for a long period, but a Limitation Act should not be construed as fettering or affecting a substantive right. It may also be said that he may have an action for damages against the mortgagee on his covenant to place him in possession on redemption, but that would be a poor substitute for his land. 28. As on principle, no period of limitation can begin to run till there is a cause of action, (the third column of the elaborate schedules in the Limitation Acts of 1871 and onwards is based on this principle and the terminus a quo as far as possible is made to coincide with the earliest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... session should be settled as soon as possible. It is noteworthy that though under Clause 15 of Section 1of the Act of 1859 the beginning of the period of limitation was the date of the transaction in suits to recover moveable and Immovable property alike, irrespective of the time fixed by the contract for such recovery and though the same provision was re-enacted in 1871, in the Act of 1877 the starting point was altered so as to coincide with the date of the accruer of the cause of action as regards suits to redeem mortgages of Immovable property. Again when the Act of 1908 was passed, in Article 138 the starting point, was altered as to coincide with the accruer of the cause of action and Clause 2 was added to Section 15, thus shewing the anxiety of the legislature to prevent any injustice by time running against a person who was unable to sue. At the same time it is to be noted that though a change was made in respect of suits for redemption or recovery of possession of Immovable property from mortgagees, no corresponding change was made in Article 134 which provided for suits to recover possession from transferees. This may be due to the fact that Article 134 provides for recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the statute cannot apply so as to make the mere possession by the mortgagee for 20 years a bar to redemption when the original contract is in terms that the mortgagor may redeem at any time during a period extending beyond the 20 years . 32. It appears to me therefore that the stringent provisions of Article 134 which cuts down the long period of 60 years which a mortgagor has after his right to redeem accrued, should not be construed as barring his action even before it arose, or as giving him a lesser period than 12 years if the cause of action arose after the date of the transfer, but before the expiry of 12 years, more especially as a transferee need not be a transferee in good faith. This question however does not really arise in this case and it is therefore unnecessary to answer the 3rd question in the reference. 33. As regards the 1st and 2nd questions I think, that unless the transferee had possession, on the date of the transfer the article cannot apply. The possession need not be physical or actual possession. As I have said already the suit must be one for possession against the transferee. The article is obviously intended to protect a person in possession f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances. But D may not take possession, for many a melcharth holder is unable or unwilling to pay for redemption immediately he obtains a transfer, more especially as he generally stipulates for 12 years enjoyment after he obtains possession. The real owner then may be barred, the very instant he is able to sue the transferee for possession. In this very case one of the transferees got possession after the institution of the suit for redemption. It must be remembered that there can be oral sales, in places where the Transfer of Property Act is not in force, and such sales would have been valid in all Provinces before the passing of that Act, and when the Limitation Ads of 1877 was enacted. The language of. Article 134 in that Act so far as concerns the present matter was exactly the same as that of the later Act of 1908. It is difficult to see how the mortgagor can in such cases possibly know that his rights are being affected to his prejudice, assuming that there is some sort of a duty to search the registers to find out if his mortgagee has not been fraudulently dealing with the property in violation of the mortgage contract. It is true, that the Law of Limitation may bar a pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for the omission on of the words 'good faith' in the article for a person may not be able to prove it after a long lapse of time, though the omission undoubtedly may enable a transferee with notice to obtain the protection of the article. Even transferees from ordinary usufructuary mortgagees may be entitled to protection, as such mortgages, in Provinces in which the Transfer of Property Act is not in force, may be effected by delivery of possession, and a transferee from a person who has long been in possession may not be in a position to find out whether such possessor is an absolute owner or a mere mortgagee, just in the same way as it may be difficult to ascertain if a person in possession of moveable property is an absolute owner or bailee. But there is no reason to extend the protection so as to materially affect the substantive rights of owners who are not in a position to protect their interests. 36. If however the article is to be applied it is difficult to fix any other date than the date of the transfer, i.e., the transfer of title as the starting point. That 'transfer' in this article means the transfer of title and not transfer of possession is cle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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