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Vishvanath Bhiva Raul v. Tukaram Vithu And Others
Factual and Procedural Background
The plaintiff sued to redeem and recover possession of the property. The plaintiff claimed through Chimabai, who mortgaged it with possession to Ganu for Rs. 75 on June 2, 1896. Ganu assigned his mortgage rights to Yamunabai on May 5, 1902. Yamunabai later transferred the property to Shankar, and Shankar sold it to the defendant. The relevant documents disclosed the prior mortgage transactions, including the assignment deed and possessory mortgage deed. [1]
The defendant claimed protection under Article 134 of the Indian Limitation Act. The trial Court granted the plaintiff a redemption decree. The appellate Court reversed that decision, held that the defendant had acquired complete title under Article 134, and dismissed the suit with costs. [2][3][4][5]
Legal Issues Presented
- Whether the defendant could rely on Article 134 of the Indian Limitation Act despite notice, or constructive notice, that the transferor's interest was only that of a mortgagee. [2][6]
- Whether the plaintiff was entitled to redeem the property from the defendant's possession. [6]
Arguments of the Parties
Defendant's Position
- The defendant sought the protection of Article 134 of the Indian Limitation Act. [2]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Tairamiya v. Shibelisahib | Where a transferee knows that the transferor is a mortgagee, Article 134 does not apply and the claim against the transferee falls under Article 148. | The Court applied this principle because the defendant had constructive notice of the earlier transactions and was treated as a transferee of the mortgagee's rights. [7][6] |
| Pandu v. Vithu | A purchaser from a mortgagee must have reasonable grounds to believe, and must believe, that the alienor could convey an absolute interest rather than merely a mortgagee's interest. | The Court relied on this principle in concluding that the defendant could not invoke Article 134 despite the disclosed mortgage transactions. [8][9][5][6] |
| Yesu Ramji v. Balkrishna Lakshman | The appellate Judge relied on this decision in support of applying Article 134. | The Court noted that this case had been considered in Pandu v. Vithu. [5] |
| Keshav v. Gafurkhant | The case concerned a purchaser who learned five or six months after purchase that the transferor was a mortgagee. | The Court distinguished the decision by noting that its judgment had to be understood in light of that factual circumstance. [5] |
| Tairamiya v. Shibalisaheb | The decision supported the proposition that a transferee of a mortgagee's rights remains subject to the mortgagor's right of redemption. | The Court held that this decision applied and that the plaintiff could redeem the property from the defendant. [6] |
Court's Reasoning and Analysis
The Court focused on the appellate finding that the defendant had constructive notice of the previous transactions concerning the property. The sale documents referred to the assignment deed, possessory mortgage deed, and earlier sale deed, demonstrating that the defendant could not be treated as an innocent purchaser of an absolute title. [1][6]
Although the documents were described as sale deeds, the Court held that their substance showed successive transfers of the mortgagee's rights. Accordingly, Shankar and then the defendant were treated as transferees of those rights rather than purchasers who acquired an absolute title. [6]
Because the defendant had notice of the mortgagee character of the title, the Court held that Article 134 could not protect the defendant. It applied the principle in Tairamiya v. Shibalisaheb and concluded that the plaintiff remained entitled to redeem the property. [7][6]
Holding and Implications
Appeal allowed. The Court restored the trial Court's redemption decree, allowed the plaintiff six months to redeem from the time the proceedings reached the trial Court, and awarded the plaintiff costs in both courts. [10][11][12]
The direct effect was that the defendant could not retain the property under Article 134 and the plaintiff could redeem it. No broader implications were discussed and no new precedent was set. [6][10]
Macleod, C.J:— The plaintiff sued to redeem and recover possession of the plaint and from the defendant. The plaintiff claimed through one Chimabai, who mortgaged the suit property to one Ganu for Rs. 75 on June 2, 1896, with possession. On May 5, 1902, Ganu assigned his mortgage rights to one Yamunabai kom Laxman for Rs. 125. Yamunabai sold the property on July 7, 1906, to one Shankar Laxman for Rs. 300. The document purported to be a sale deed, but contained this clause: “I have given in your custody for keeping them with you, the documents that I have regarding the said house.” Those documents included the assignment of the mortgage rights given by Ganu to Yamunabai. Shankar, therefore, knew that the owner was only a mortgagee. On September 21, 1907, Shankar sold the plaint property to the present defendant for Rs. 400. That document contained the following clause: “The said property was in the vahivat of Yamunabai by right of the assignment deed of May 6, 1902, She sold it to me for Rs. 300 on July 7, 1906, and passed to me a registered sale deed for it. Before that, Yamunabai was in vahivat of the said property. Since we purchased it from her it was in our vahivat and we have sold it to you.” At the end of the document it is stated as follows: “I have given into your custody for keeping them the assignment deed of the said house, the possessory mortgage deed and the sale ??? passed by Yamunabai”.
2. The defendant sought the protection of Article 134 of the Indian Limitation Act.
3. The trial Court said:—
‘Where the transferor is a mortgagee and the transferee has notice of that fact, in such a case Article 134 has no application at all and the suit against the transferee would come within Article 148 (see Tairamiya v. Shibelisahib: 22 Bom. L.R 802). ‘[When a transferee for value from a mortgagee seeks the protection of Article 134, he must be] a person who purchases that which is de facto a mortgage upon the representation made to him and in the belief that it is [not a mortgage but] as absolute [sale] title.”
4. Those are the words of Sir Charles Sargent in Pandu v. Vithu(2). The Judge continued:—
“In other words he must have reasonable grounds for believing, and must believe, that his alienor had the power to convey an absolute interest and not merely the interest of a mortgagee.”
5. Accordingly the Judge passed a redemption decree in favour of the plaintiff. In appeal the Judge said:—
“I am unable to concur in the opinion of the Second Class Subordinate Judge that Article 134 does not apply where the transferee has notice that his transfer of title is that of a mortgagee and not of ac owner.”
6. He relied upon the decision in Yesu Ramji v. Balkrishna Lakshman(1); but that case was considered in Pandu v. Vithu. In Keshav v. Gafurkhant(3), also referred to by the Judge, the purchaser only became aware five or six months after his purchase that his transferor was a mortgagee, and the judgment of the High Court must be considered with regard to that fact. As the Judge considered that the defendant bad acquired a complete title to the house in suit under Article 134, and the plaintiff had no right to redeem, the plaintiff's suit was dismissed with costs.
7. We think on the facts of this case, and especially on the finding of the appellate Judge, that the defendant had constructive notice of the previous transactions relating to the plaint house, that he cannot take advantage of the provisions of Article 134 of the Indian Limitation Act. We think the proper view to take of this case is, that, in spite of the sale deed, first Shankar and then defendant, were transferees of the mortgagee's rights. In that case the decision of this Court in Tairamiya v. Shibalisaheb(4) will apply and the plaintiff will be entitled to redeem the property from the possession of the defendant.
8. We, therefore, allow the appeal and restore the decree of the trial Court. Six months are allowed to the plaintiff for redemption, to ran from the time the proceedings reach the trial Court.
9. The plaintiff will be entitled to his costs in this Court and in the Court below.
10. Appeal allowed.
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