JUDGMENT
Norman Macleod, C.J.
1. The plaintiff sued for an account of the amount due under the mortgage referred to in the plaint to the mortgagees under the Dekkhan Agriculturists’ Belief Act. The property was originally held in equal shares, one of which belonged to Bam Naroji and the other to two brothers, Jivaji and Kusaji, Jivaji being the elder brother of the joint family consisting of two brothers. Bam Naroji and Jivaji together mortgaged both shares to one Anant Laxman on March 17, 1868. Ram Naroji’s share in the equity of redemption was sold subsequently at a Court sale and purchased by one Joshi who conveyed the same to the grandfather of defendants Nos. 1 and 2 by Exhibit 58 in 1872. Jivaji within two or three months of the mortgage sold his share in the equity of redemption to the mortgagee Anant. Anant’s son by Exhibit 55 in 1873 sold Jivaji’s and Kusaji’s share in the equity of redemption to the grandfather of defendants Nos. 1 and 2. The Trial Court held that the plaintiff had obtained a sale-deed in respect of the whole property belonging to Ram Naroji, and Jivaji and Kusaji, from the son of Bam Naroji and from Kashi widow of Shivram Babaji, the grandson of Kusaji Babaji. This purchase was in 1914. The Trial Court held that Bam Naroji’s share in the equity of redemption having been sold through the Court his rights were extinguished. He held, however, that Kusaji was not bound by his brother’s sale of the equity of redemption and declared that Rs. 399-8-0 was the amount due under the mortgage of the other half belonging to Jivaji. In appeal that decision was set aside. The Appeal Court held that in the absence of any pleading as to the validity of the sale by Jivaji to Anant the Court could not enter into that question. The learned Judge also held that if the pleadings of the plaintiff had challenged the validity of Kusaji’s share, a suit of that nature under Section 15D of the Dekkan Agriculturists’ Relief Act could not lie. Accordingly he dismissed the plaintiff’s suit.
2. On a consideration of these facts it would be strange if a purchaser from the heirs of Kusaji in 1914 could now file a suit for an account of the mortgage of 1868 on the ground that his brother having sold the equity of redemption in the same year without his consent he was entitled to disregard that sale and plead that his share never passed at all. Kusaji would have had a right to dispute the alienation as soon as it came to his knowledge, and his suit challenging the alienation would be barred after twelve years from the date of his knowledge. We have to presume for the purpose of the appellant’s argument that Kusaji had no knowledge of the alienation and I see no reason why at this distance of time we should make that presumption. Apart from that, the ancestors of defendants Nos. 1 and 2 having purchased from the mortgagee the whole property and not merely the mortgagee’s rights, clearly Article 134 of the Indian Limitation Act would apply and the purchaser would be entitled to retain the property if no suit was brought to set aside the sale within twelve years of the transfer. That point does not seem to have been considered in either of the Courts below but it does seem to me to be an absolute answer to the plaintiff’s case.
3. There is a further point that this suit does not lie under Section 15D of the Dekhan Agriculturists’ Relief Act which merely provides that “Any agriculturist whose property is mortgaged may sue for an account of the amount of principal and interest remaining unpaid on the mortgage and for a decree declaring that amount.” Then by Sub-section (3) “at any time before the decree in the suit is signed the plaintiff may apply to the Court to pass a decree for the redemption of the mortgage.” It will be seen, therefore, that a suit of that kind will only lie on the presumption that there was a mortgage in existence by an agriculturist and that an issue whether or not a mortgage was in existence could not be entertained. In Chandabhai v. Ganpati 86 Ind. Cas. 517 : 18 Bom. L.R. 763 “the plaintiffs filed a suit to redeem a mortgage under the provisions of the Dekkhan Agricultrists’ Relief Act, 1879, praying that a sale-deed subsequently executed by their mother of some of the mortgaged lands to defendants be cancelled as fraudulent. It was held that the suit was outside the scope of Section 3, Clause (z), of the Act, because the suit was not a mere suit to redeem, but was a suit primarily for the setting aside of a fraudulent deed of sale.” In this case if the plaintiff could disregard entirely the alienation by Jivaji the suit would certainly come within the provisions of Section 15D of the Dekkhan Agriculturists’ Relief Act. He contends that there is no necessity for him to ask for a declaration that the alienation did not affect his interest in the equity of redemption. But it seems to me that it will be impossible for the plaintiff to succeed until he can satisfy the Court that the alienation was bad as far as his share in the equity of redemption was concerned, and that he was entitled to consider his rights as mortgagor under, his sale-deed from the descendants of Kusaji were still in existence. Therefore, on all these grounds it seems clear that the appellant has no case and the appeal must be dismissed with costs. In this case there will be two sets of costs.
Shah, J.
4. I concur.
