At, High Court of Judicature at Allahabad
By, THE HONORABLE CHIEF JUSTICE: HENRY RICHARDS AND THE HONORABLE CHIEF JUSTICE: PRAMODA CHARAN BANNERJI
1. This appeal arises out of a suit to redeem a mortgage made in the year 1843. The facts are a little complicated, but it is unnecessary to state them in detail for the purpose of deciding the present appeal. It appears that in the years 1878 and 1879 persons in whom the mortgagee rights were then vested made transfers in favour of certain persons who are now represented by the appellants. In these transfers words are use
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d descriptive of the interest transferred which would be appropriate if the transferor was absolute owner and not merely mortgagee. On the other hand, the words are not altogether inappropriate as descriptive of the right of a mortgagee in possession. The lower Appellate Court has found in concurrence with the Court of first instance that the actual interest which the transferors had at the date of the transfers was that of mortgagees in possession. It has also found (and given good reasons for its findings) that the transferees knew what the interest of the transferors was. After the transfer the name of the transferee was entered in the revenue papers as owner of the mortgagee interest. It is contended here that notwithstanding the findings of the Court below Article 134 of the Limitation Act bars the suit. Article 134 is as follows: "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." The period is twelve years from the date of the transfer.
2. It is admitted that a mortgagor has sixty years within which to bring a suit for redemption. It is also admitted that where the mortgagee transfers his mortgagee rights as such, the transferee stands in no better position than the transferor. It is, however, urged that if the words used in the deed of transfer are applicable to the transfer of an absolute interest, then Article 134 applies, no matter whether the transferee was aware of the nature of the interest of the transferor or not. We find great difficulty in accepting this contention. The main argument in favour of it is based on a comparison between the words of Article 134 in the recent Limitation Acts and Article 134 in Act IX of 1871. In that Act the Article was as follows: "To recover possession of Immovable property conveyed in trust or mortgaged and afterwards purchased from the trustee or mortgagee in good faith and for value."
3. It is said that the absence of the words "in good faith" in the recent Acts shows the knowledge of the nature of the transferor's title is quite immaterial. Reliance is placed upon the case of Yesu Ramji Kalanath v. Balkrishna Lakshman 15 B. 583. This case seems to have been considered in a later judgment of the same Court in the case of Pandu v. Vithu 19 B. 140. We think that there is no reason for holding that the omission of the words "in good faith" from the recent Act entitled the person who purchased, with full knowledge that his vendor's title was merely that of mortgagee, to the benefit of Article 134 It may have been that the words were considered not altogether appropriate and that their retention would throw the onus on the transferee of proving that he had no knowledge of his vendor's title. This would be in many cases a hardship upon the person in possession of the property--he would have to prove a negative possibly after the lapse of many years. Whatever may be the reason for omitting the words, we cannot think that the Legislature intended that the mortgagee and his transferee should be able to shorten the period allowed by law for redeeming a. mortgage by wilfully, and to the knowledge of both, misdescribing the interest transferred in the deed of transfer. In our opinion having regard to the findings of the Court below that the transferees from the mortgagees had actual knowledge that their vendors' title was merely that of a mortgagee and that they had no belief that they were purchasing an absolute interest, the decision of the Court below should be affirmed.
4. The only other point is a question of calculation, This is a matter which was not brought to the notice of the lower Appellate Court and we do not think it can be entertained here.
5. The result is that the appeal fails and is dismissed with costs