Ali Muhammad And Ors. vs Lalta Bakhsh And Ors. on 30 April, 1878

Allahabad High Court
Ali Muhammad And Ors. vs Lalta Bakhsh And Ors. on 30 April, 1878
Equivalent citations: (1875) ILR 1 All 655
Bench: Pearson, Oldfield


1. The estate of which redemption is sought in this suit belonged to Kali Khan, and had before his death been in mortgage, and in June 1851, was re-mortgaged for a term of 20 years to Lalta Bakhsh and Lakhan Singh, the sons of the former mortgagee, by his sons, Azmat and Niamat. On the 31st July 1863, it was sold to the respondents by his widow, Munni, as her own property, and the sale transaction is said to have been followed by mutation of registry, notwithstanding an objection preferred by the present appellants in the registry department. Shortly before the expiry of the term of the mortgage, his daughter, Imaman, sued to establish her right to a share of the estate as one of the heirs of her father and brothers. On the 18th September 1874, the Court of First Instance passed in her favour a decree which was upheld in special appeal by this Court on the 22nd June 1875. She and other heirs of Azmat and Niamat aforesaid have now joined in this suit for the redemption of the mortgage. Her claim is not disputed, but the claim of the plaintiffs, appellants, is resisted by the defendants, respondents, Lalta Bakhsh and Lakhan Singh, the original mortgagees, on the ground that, as more than twelve years have elapsed between the date of the deed of sale executed by Munni and the date on which the present suit was instituted, their rights have ceased to exist. The defence has been accepted by the lower Courts as a complete and conclusive answer to the suit. The Court of First Instance holds their claim to be barred by the general limitation of twelve years. The lower Appellate Court, concurring, expresses its opinion that, as the plaintiffs, appellants here, did not sue within twelve years from the 31st July 1863, to avoid the sale-deed of that date, the defendants, respondents, must be considered to have been in adverse possession from that date of the property which those plaintiffs claim to redeem as belonging to them.

2. The suit as brought is simply a suit of the nature described in Article 118, Schedule ii of Act IX of 1871. Sixty years is the period of limitation fixed for such a suit. The ruling of the Court below that the suit is barred by limitation is obviously wrong; but of course the suit is liable to be dismissed if the plaintiffs, appellants here, have really lost their rights by reason of not having sued to set aside the sale-deed of the 31st July 1863, within twelve years from that date. Section 29 of Act IX of 1871 declares that, at the determination of the period limited to any person for instituting a suit for possession of any land, his rights to such land shall he extinguished; but it does not appear that the plaintiffs, appellants, have lost their rights under the operation of this section, inasmuch as the right of redeeming and recovering possession of the landed property in suit only accrued to them in June 1874, on the expiry of the term of mortgage. The possession of Lalta Bakhsh and Lakhan Singh, under the deed of mortgage of June 1854, of the rights conveyed to them thereby was certainly not adverse to the mortgagors of their ropreseutatives, who still remained possessed of the equity of redemption, or the right of reentry on their property after the term of mortgage on repayment of the mortgage debt. It does not appear that the plaintiffs, appellants, were divested of this right by the sale-deed of the 31st July 1863, to which they were not parties. Munni, by whom it was executed, could transfer or surrender her own rights, but was not legally competent to transfer or surrender the rights remaining in the property of the plaintiffs, appellants, and those rights consequently could not pass to her vendees by means of that instrument. How then the possession of the original mortgagees, which was not adverse before the 31st July 1863, became after that date adverse to the plaintiffs, appellants, it is not easy to understand. The possession of a mortgagee does not become adverse whenever a mortgagee chooses to style himself or is styled proprietor of the mortgaged property. One does not see then why the plaintiffs, appellants, were hound to sue for the evidence of what was actually void. The sale-deed by which their rights wore illegally disposed of did not practically effect them, for their rights of re-entry by redemption could not practically ho enforced until the expiry of the term of mortgage in June 1874, and therefore, although its execution would doubtless have justified them in suing for its avoidance, had they deemed such a precaution expedient, such a proceeding was not necessary or obligatory upon them. They required no immediate relief. Now that they are asserting their right of redeeming the property from those to whom it was mortgaged by persons whom they represent and to whom they have succeeded in title, it is surely for the mortgagees, if they dispute the right in reliance on the deed of sale of the 31st July 1863, to show that it destroyed that right, The mere exhibition of their names as the vendees of the property in the proprietary registers of the Revenue Department cannot create a proprietary title in them: such a title must be proved to have a legal origin. The ruling of the lower Courts is in direct contravention of the Full Bench riding in Sheopal v. Khadim Hossein H.C.R. N.W.P. 1875 p. 280, to the effect that the mere assertion of an adverse title will not enable a mortgagee in possession to abbreviate the period of 60 years which the law allows to a mortgagor to prosecute his right to redeem and seek his remedy by suit. There is no evidence that the defendants, Raghu Nath and Khuman Singh, who have not defended the suit, have ever been in possession of the property in suit under the sale-deed of the 31st July 1863. The defence which the lower Courts accepted must be rejected as untenable. Reversing the decree of the lower Court in so far as it dismisses the claim of the plaintiffs, appellants, we decree this appeal and claim with costs in both Courts.

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