1. This appeal arises out of a suit brought by the plaintiffs for possession of property which was mortgaged as long ago as 6th September 1856, by Shambhu, under whom the plaintiff's claim, to a man named, Hulasi. The plaintiffs claimed to be entitled to redeem the mortgage. They said that defendants 1-7 were owners of the mortgagee rights. Those defendants resisted the suit on the ground that they had become proprietors of the property. In April 1877, the rights and interests of the mortgagee were put up to sale and purchased by one Ghasi. In January 1884, Ghasi sold to defendants 1-3 half the rights which he had acquired at the auction sale, and in December 1888, he sold to the predecessor-in-title of defendants 4-7 not only the mortgagee rights which he had acquired at the auction sale, but what he represented to be an absolute proprietary interest in the property, for a sum of Rs. 100. The suit has been decreed as against defendants 1-3 on the ground that they are not entitled to the protection of Article 134, Sch. 1, Lim. Act, but it has been dismissed against defendants 4-7 on the ground that what Ghasi purported to sell to them and what they purchased from him was an absolute proprietary interest in the property which they held. Here I may note that they have been in possession of the property since December 1888. This appeal is brought only against defendants 4-7.
2. It is contended that Article 134 does not apply to the case, because defendants did not purchase from the original mortgagee of the property. It is conceded that a purchaser from the son or other heir of the original mortgagee of the property would be entitled to rely upon Article 134, but it is contended that a person, who purchases from the auction purchaser of the rights of the original mortgagee, is not entitled to rely upon that article. Several cases supposed to bear upon this question have been cited to me; but on examination they are all found to be totally irrelevant, and it is useless to discuss them. I have no hesitation in holding that a person who purchases by private treaty from an auction purchaser of the rights of the original mortgagee is entitled to rely upon Article 134.
3. The auction purchaser of the rights of the mortgagee steps into the shoes of the mortgagee. Next it is contended that Article 184 affords protection only to a person who purchases property from a mortgagee in the bona fide belief that he is purchasing an absolute proprietary title. The words “in good faith” which appeared in Article 134, Lim. Act of 1871 were struck out of that article when Act 15 of 1877 was passed and do not appear in the present Limitation Act of 1908.
4. My view is that the words were advisedly struck out in order to put a atop to the instituting of inquiry into the knowledge or state of mind of a purchaser of the property. That was the view expressed by Tudball, J., in Dal Singh v. Our Prasad (1), and it is said to have been repeated by him in an unreported decision by him in Second Appeal No. 547 of 1914. The case is referred to in a judgment of Piggott, J., but a wrong reference is given, the case actually referred to being a suit for restitution of conjugal rights. But it seems that this Court has in several cases either held or assumed that, notwithstanding the alteration in the language of Article 134, the purchaser must show that he purchased in good faith. There seems to have been some difference of opinion on the subject in the Bombay High Court: see Yesu Ramji Kalnath v. Balkrishna Lakshman (2) and Pandu v. Vithu (3). Sitting as a single Judge I must follow the decisions of this Court and I there fore direct that the record of this case be returned to the lower appellate Court for finding on the question whether the predecessors-in title of defendants 4-7 purchased the property now in their possession from Ghasi in the bona fide belief that they were acquiring an absolute interest in the property. Further evidence may be admitted. Ten days will be allowed for objections on return of the finding.
V.B/R.K
5. Case remanded.