Behari Lal vs Babu Ram And Ram Chander And Ors. on 9 April, 1929

Allahabad High Court
Behari Lal vs Babu Ram And Ram Chander And Ors. on 9 April, 1929
Equivalent citations: 118 Ind Cas 659
Author: Bennet
Bench: Bennet


Bennet, J.

1. This is a second appeal by a defendant against whom the lower Courts have decreed redemption of a mortgage of a shop. The mortgage was made in 1867 by one Mulraj to Hulasrai, the ancestor of the first defendant. The plaintiff purchased the equity of redemption from the descendants of Mulraj on 2nd January, 1926. On 16th January, 1914, the defendant No. 1 executed a sale-deed of this house as owner in favour of defendant No. 2. This deed was registered on 19th January, 1914, when the price was paid. The present suit was brought on the 19th January, 1926. The only question, which has been argued on second appeal is whether Article 134 of the Limitation Act applies to this suit and the method of its application. The Article states that the period of limitation runs from the date of transfer. If so, the suit would be time-barred if the Article applied. On the other hand, if the Article applied from the date of possession and that date were taken as the date of, payment before the Sub-Registrar on 19th January, 1914, then if the Article applied the suit would still be within limitation. I consider, however, that if the Article applied, it ought to be applied as stated in the Limitation Act from the date of transfer, i. e., from 16th January, 1914. The main question, however, for this Court to decide is whether it is necessary for a transferee of a mortgagee, who purports to transfer proprietary rights as an owner to show that he took in good faith. In the Limitation Act of 1871 the corresponding Article provided that the transferee must take in good faith. These words “good faith” were omitted from the two subsequent Acts of 1871 and 1908. In various rulings a distinction has been drawn between a purchaser from a trustee and a purchaser from a mortgagee, both of whom purported to transfer proprietary rights which they did not possess. It has been held that for the purchaser from a trustee it is not necessary to show that a transfer was made in good faith for the Article to apply. The learned Counsel for the appellant contended that the same criterion applied to the transferee from a mortgagee. He relies on two rulings of this Court, one of which is Naunihal Singh v. Alice Georgina Skinner 92 Ind. Cas. 63 : 23 A.L.J. 691 : A.I.R. 1925 All. 707 : 47 A. 803. That ruling held that Article 134 of the Limitation Act is designed for the protection of a transferee who has been led by a mortgagee to believe that he is acquiring not merely mortgagee rights but a full proprietary title. The finding of the lower Appellate Court is that the appellant-transferee did not honestly believe that his vendor had the rights of an owner. Not satisfied with the recital in the sale-deed the appellant had another deed of indemnity executed. Further as the lower Appellate Court has pointed out, the sale consideration was only Rs. 250 whereas the mortgage of the same property was for Rs. 500. It is clear, therefore, that even under the ruling of Naunihal Singh v. Alice Georgina Skinner 92 Ind. Cas. 63 : 23 A.L.J. 691 : A.I.R. 1925 All. 707 : 47 A. 803. Article. 134 would not apply. Another case relied on by the learned Counsel for the appellant is Ram Piari v. Budh Sain 61 Ind. Cas. 540 : 18 A.L.J. 995 : 2 U.P.L.R. (A.) 332 : 43 A. 164. But that ruling held that Article 144 and not Article 134 or 148 applied to the facts of that case. The ruling merely refers on page 998 Page of 18 A.LJ. [Ed.] to Article 134 for the purpose of distinguishing this Article from Article 144 on the ground that the Article 134 requires possession to be given with the transfer and Article 144 does not. This ruling, therefore, is no authority whatever for the proposition enunciated by the learned Counsel for the appellant. On the other hand, there is a clear authority to the contrary in Drigpal Singh v. Kallu 30 Ind Cas. 956 : 37 A. 660 : 13 A.L.J. 945. This ruling states that the omission of the words “good faith” from Article 134 of the First Schedule to the Limitation Act of 1908 does not entitle a person, who purchases with full knowledge that his vendor’s title is merely that of the mortgagee, to the benefit of that Article. The finding of the lower Appellate Court is that the appellant did make the purchase with full knowledge that the title of his vendor was only that of a mortgagee. Accordingly I consider that the lower Appellate Court was correct in holding that Article 134 does not apply to the present case. This was the only one of the grounds of appeal which was argued by the learned Counsel for the appellant. Accordingly I dismiss this appeal with costs.

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