Narayana Ayyab v. Venkataramana Ayya

JUDGMENT

This is an appeal by the plaintiff in a suit brought by him on a mortgage bond, dated 4th August, 1882, for the recovery from the mortgagors—the defendants—of the sum of Rs. 11,000, for principal and intest due under the mortgage bond, and in default of payment of the same, on a day to be specified by the Court, for sale of the mortgaged property. The suit also embraced another claim against the defendants for a sum of Rs. 4,000 and odd, unconnected with the mortgage, which will be referred to hereafter. The time stipulated in the mortgage bond for re-payment of the mortgage-debt was the 31st December 1882; and in exhibit C, dated 16th April, 1885, there was a distinct acknowledgment, within the meaning of section 19 of the Limitation Act, of the defendants' liability in respect of the mortgage sued upon, which under exhibit C was assigned by way of sub-mortgage, by the plaintiff, with the concurrence of the defendants, to a third party, from whose assignee, the plaintiff redeemed it and obtained a re-conveyance on the 13th April, 1807.

The suit was instituted on the 21st April 1897. The Subordinate Judge of Ootacamund, in whose Court the suit was instituted, held that the suit, in so far as it related to the, mort— gage claim, was barred by the law of limitation as against the first and third defendants, but a decree was passed against the second defendant, who did not appear to defend the suit, for payment of the mortgage money and, in default of payment, for sale of his interest (one-third share) in the mortgaged property. In paragraph 10 of his judgment, the Subordinate Judge applied article 132 of the Limitation Act and held that as twelve years had expired before the date of the suit, from 16th April, 1885, the date of acknowledgment in exhibit C, the suit was barred by the law of limitation and he adhered to his view in his order, dated 3rd August, 1899, rejecting an application for review of judgment, holding that though the mortgage sued upon was an English mortgage, yet the period of sixty years prescribed in article 147 of the Limitation Act was not applicable to this suit, inasmuch as the suit was not for foreclosure, or in the alternative, for sale, but for sale only.

The question chiefly argued in appeal is that the suit was not barred by the law of limitation for the following reasons:—

(i) That the mortgage in question is an English mortgage and the article of the Limitation Act applicable to the suit is 147 and the fact that the prayer in the plaint was only for sale and not for foreclosure and, in the alternative, for sale, makes no difference.

(ii) That even if the mortgage is not an English mortgage, article 147 is applicable to it.

(iii) That even if the suit was governed by the period of twelve years prescribed by article 132, the suit is within time for the following reasons:—

(a) That the receipt of the rents and profits of the mort gaged property, by the plaintiff, should be treated as receipt of the same by him as mortgagee and payment by the mortgagors, for the purpose of section 20 of the Limitation Act.

(b) That as the mortgage sued upon was assigned by exhibit C, by way of sub-mortgage, with the concurrence of the defendants—the mortgagors-and the plaintiff redeemed the sub-mortgage only on the 15th April, 1897, limitation would run only from that date or, at any rate, the period during which the sub-mortgage existed, should be excluded in computing the period of limitation.

(c) That there was an acknowledgment of liability in respect of the mortgage in question by the first defendant, in his deposition (now marked exhibit EE), dated 27th July, 1889, in Original Suit No. 646 of 1888, in the District Munsif's Court at Udamalpet, in which these three defendants were also defendants and that such acknowledgment should be treated, not only as one made in his own behalf but also as one duly made on behalf of the other co-motgagors.

(d) That exhibit C1 series, being annual settlements of accounts from 1886 to 1897, made between the plaintiff and second defendant and signed by them, operate as an acknowledgment of liability by the managing member of the undivided family consisting of the three defendants.

The various grounds upon which it has been contended that even if the suit was governed by the period of twelve years prescribed by article 132 the suit is within time, will first he dealt with and the question of English mortgage and the application of article 147 to the suit will then be considered.

iii(a) In considering this ground, it has to be borne in mind, that the plaintiff on the one hand and the three defendants on the other are co-owners of a coffee estate known as the Havakul estate and that the undivided moiety of the defendants was mortgaged to the plaintiff under exhibit A on the 4th August, 1882. The possession was to remain with the mortgagors, the mortgagee however having full powers of inspection and in case of default in properly cultivating the said estate, full powers of supervision and superintendence. The mortgagee was also to have the right of entering upon and taking possession of the mortgaged property on the mortgagors' default to discharge all moneys, for the time being, due on the security.

It is not alleged in the plaint that the plaintiff exercised the right of entry and received the produce of the land as mortgagee. But in paragraph 2 of the plaint, it is distinctly stated that plaintiff “under an arrangement made by the plaintiff with defendants has been the managing partner, and, as such, has worked the estate from 1882. He has been submitting accounts to the defendants and as managing partner has advanced considerable sums out of his own money, for the upkeep of the estate.” And it is in connection with this arrangement that the plaintiff claims the sum of Rs. 4,000 and odd for the defendants' share in the expenses of the upkeep of the estate from 1885 to 1896. All the produce of the Havakul estate including the defendants' moiety, is credited in the account relating to the management of the estate by the plaintiff as managing partner or, rather, co-owner and not credited, in part or whole, towards the mortgage debt.

The contention now raised is opposed to the plaint and does not seen to have been advanced in the lower Court. It is the result of an afterthought and it is impossible to accede to the argument that it should he now assumed, for the purpose of saving the suit from the bar of limitation, that the plaintiff exercised his right of entry upon the mortgaged property of which he was apparently already in possession as managing co-owner and that he received the produce of the moiety of estate mortgaged to him, as mortgagee and not as a co-owner managing the whole estate.

iii(b) The contention that limitation should be reckoned, as stated in paragraph 10 of the plaint, from the 13th April, 1897, the date of redemption, by the plaintiff, of the sub-mortgage, or as urged in argument, that in computing the twelve years' period of limitation, the time between the 16th April, 1885 (the date of the sub-mortgage, exhibit C) and 13th April, 1897 should be excluded, is manifestly untenable and no authority or principle was relied upon in support thereof.

iii(c) The first defendant's acknowledgment of liability in respect of the mortgage in question, contained in his deposition before the District Munsif of Udamalpet above referred to, is in these terms:—“Our proprietary right in the said coffee estate is mortgaged by us three, under a registered deed, for the sum of Rs. 7,000.” This, in our opinion, is not a mere recital of a liability that once existed, but amounts to an acknowledgment of a liability existing at the date of the acknowledgment; but there is nothing in the deposition itself to show that the mortgage liability therein acknowledged is the one in favour of the plaintiff. The first defendant, in his evidence, in the present suit, admitted that he deposed as recorded in exhibit EE, but stated that the hypothecation debt in question—i.e, the mortgage now sued upon—had been discharged when he made the deposition and that there was then no balance outstanding. Immediately afterwards, in answer to a question by the Court, he admitted that the mortgage debt, of Rs. 7,000 due to the plaintiff had not been discharged when he made the deposition (exhibit EE) and that it was by mistake he stated that the debt of Rs. 7,000 had been discharged when he only meant that a debt of Rs. 3,000 due to one Subbaramayyar had been discharged.

The first defendant's deposition in the present case is only referred to as proof that the mortgage liability acknowledged by him in exhibit EE, is the one on which the plaintiff now sues and not for the purpose of construing that acknowledgment as the acknowledgment of a liability then existing.

For the purposes of section 19 of the Limitation Act, the acknowledgment relied upon must on the face of it purport to be that of an existing liability. But the name of the creditor to whom the debt acknowledged is owing as also the identity of the del it acknowledged in writing may be proved by parol evidence [Daia Chand v. Sarfraz, Uppi Haji v. Mammavan, Woomesh Chander Mookerjee v. Elisa Sageman, Padmauabhan Nambudri v. Kunhi Kolendan, Hartley v. Wharton, Shortrede v. Cheek(6)].

The decision of the Privy Council in Mylapore v. Yeo Kay(7) in no way militates against this view. All that was therein decided was that the acknowledgment, in order to be within the meaning of section 19, must be an acknowledgment of liability to the person who is seeking to recover possession or some one through whom he claims. In that case it was held that the person whose acknowledgment was relied upon did “not admit that he was liable to be turned out of possession or that any one had a right of possession as against him” and that he did not “make any admission at all to the plaintiff or to any one through whom he claims.” It will thus be seen that there was no acknowledgment of any liability at all and no question therefore arose, as to whether, if a liability in respect of the property was acknowledged parol evidence could be given to identify the liability either in respect of the property liable or the debt due or the person to whom it was due.

In our opinion, therefore, the suit is not barred as against the first defendant. But we are clearly of opinion that the first defendant's acknowledgment cannot affect his co-mortgagor—the third defendant—and save the suit from being barred by limitation as against him. Apart from the first defendant's position as co-mortgagor with the third defendant there is nothing to warrant the inference that the former acted as an agent duly authorised by the latter in making the acknowledgment (explanation 2 to section 19 of the Limitation Act). Under section 21, one of several joint contractors cannot be chargeable by a written acknowledgment made under section 19, by reason only that such acknowledgment is made by another joint contractor. An agency within the meaning of explanation 2 of section 19 cannot be inferred from the mere fact, that the person making the acknowledgment is a joint contractor.

iii(d) Exhibit C1 series bear the signature of the second defendant and if the various acknowledgments therein contained were really made and signed on the dates when they purport to have been made and signed the question will arise as to whether when one of several joint contractors heppens to be the managing member of an undivided family consisting of the joint contractors, his acknowledgment would give a fresh starting point of limitation out only as against himself but also as against his co-contractors or co-mortgagors. But beyond his own statement as plaintiff's witness and that of the plaintiff, there is no evidence that the various acknowledgments evidenced by exhibit C1 series were made and signed on the dates they bear. The evidence shows that for some time past there had been ill-feeling between the second defendant and his brothers—the first and third defendants—and we agree with the conclusion arrived at by the Subordinate Judge that the second defendant is acting in collusion with the plaintiff.

There are various endorsements on the mortgage bond in question, signed by the second defendant, showing that interest has been paid from time to time up to 1896. It is now admitted that no such interest was in fact paid and the plaintiff claims interest on the mortgage-debt from the 31st March 1891. The mortgage bond came back into the possession of the plaintiff, from the sub-mortgagee, only in April 1897, and these various endorsements thereon by the second defendant must have been made subsequent to that date. The whole of the exhibit C1 series is in the handwriting of the plaintiff or the second defendant and none of the coffee estate clerks were taken into confidence in writing any portion of the exhibit, C1 series. There, is very strong reason to suspect that the exhibit C1 series were concocted by the plaintiff, in collusion with the second defendat, for the purposes of this suit, either shortly before or after the institution of this suit.

There being therefore no trustworthy evidence that the second defendant made the acknowledgments in question, on or about the dates they bear, the question as to how far his acknowledgments would affect the other defendants does not really arise. But it seems clear that, when a creditor deals, not with the managing member only of a family, but with all the members of the undivided family as co-obligors and on that footing enters into a transaction—thereby avoiding any question as to whether the transaction was really for the benefit of the family—be cannot rely upon an acknowledgment of the liability, made by one of them, as an acknowledgment duly made on behalf of all the co-obligors, by reason only that the person acknowledging is in fact the managing member of the family consisting of the co-obligors. All that was decided in the Full Bench decision of this Court in Chinnaya v. Gurunalham is that when a debt was incurred or contracted by the managing member of an undivided Hindu family and it was kept alive against him by his acknowledgment, a suit against the members of the joint family for the recovery of such debt on the ground that was incurrey by the managing member for a family purpose, will not be barred as against any of them. But no case has been cited in which it was held that if two or more persons, who in fact are members of a joint Hindu family jointly contract a debt, an acknowledgment by one of them will keep the debt alive as against the rest also, by reason only that the person so acknowledging happens to be the managing member of the family. It may well be, however, that, in particular cases, this circumstance, coupled with the conduct of the joint contractors, may warrant a conclusion that as a matter of fact he was duly authorised to make the acknowledgment on behalf of all.

The next questions for consideration are the character of the mortgage-deed and the article of the Limitation Act applicable to it.

We are unable to agree with the Subordinate Judge that the mortgage in question is an ‘English’ mortgage. The definition of an ‘English’ mortgage is given in clause (e) of section 58 of the Transfer of Property Act, which came into force on the 1st July 1882 and is therefore applicable to the mortgage deed in question executed on the 4th August, 1882. The three essentials of an ‘English’ mortgage are (1) that the mortgagor should hind himself to repay the mortgage money on a certain day, (2) that the property mortgaged should be transferred absolutely to the mortgagee, (3) that such absolute transfer should be made subject to a proviso that the mortgagee will reconvey the property to the mortgagor, upon payment by him of the mortgage money, on the day on which the mortgagor hound himself to repay the same.

The first requisite is fully satisfied by the mortgage-deed, by the covenant that the mortgagors will repay the mortgage money on the 31st December 1882, there being also a stipulation to pay interest in the meanwhile on specified dates.

But it is at any rate doubtful whether the second requisite is fully satisfied. The absolute transfer of the property to the mortgagee is effected—if it is effected at all—in these terms:—

“The mortgagors hereby mortgage and assign to the mortgagee, the coffee estate described in the schedule hereto, with the buildings, machinery and all immoveable and moveable property now or which hereafter may be upon, the same or used in connection therewith, and with all rights, easements and appurtenances thereto.” That a conveyancer should seek to effect a transfer of the property and vest the legal estate in the mortgagee by using the verb ‘mortgage’ is certainly strange. The operative words should be the same as in an absolute conveyance and the transfer should be by conveyance, assignment, demise, or otherwise, according to the nature of the property forming the subject of the mortgage. The property mortgaged in the present case was freehold and the estate of the mortgagors was an estate in fee-simple. As a matter of conveyancing, at any rate, the absolute transfer of such an estate to the mortgagee, by the operative words ‘mortgage and assign’ is certainly curious. However; having regard to the use of the verd ‘assign’ in effecting the transfer and the proviso for reconveyance and the presumption made by section 8 of the Transfer of Property Act in the absence of an expression or necessary implication of an intention to the contrary, it may be said that the second requisite of the definition of ‘English mortgage’ is also fulfilled.

But it is impossible to hold that the third requisite, viz., that in the event of the mortgagor repaying the mortgage money at the time stipulated, the mortgagee shall reconvey the property,—is fulfilled. The proviso for reconveyance is in these terms:— “upon repayment to the mortgagee, of all sums due to him by the mortgagors, the mortgagee shall reconvey the said property to the mortgagors, their executors, administrators and assigns or as they or he shall direct, at their or his request and costs.”

In the absence of the expression as agreed between ‘upon repayment’ and ‘to the mortgagee’ in the above clause, or of other words, in the said clause or in any other part of the instrument, importing that the covenant to reconvey is dependent upon the repayment of the mortgage money being made at the stipulated time and that according to the contract of parties the covenant to reconvey is not enforceable in default of repayment at the stipulated time, it seems to us the transaction cannot be regarded as an English mortgage the very essence of which is that according to the contract of parties there is at law no right of redemption in default of payment on the due date.

In distinguishing one kind of mortgage from another, ‘form’ is of the essence of the transaction and cannot be ignored. It may be that the above omission is either accidental or the result of carelessness on the paid; of the conveyancer, or it may be that the conveyancer having no knowledge of the doctrine of ‘the equity of redemption’ engrafted by the Chancery Courts upon English mortgages, purposely drafted the clause as he has done, to ensure the right of the mortgagor to redeem and obtain reconveyance on repayment even after the stipulated time.

According to the construction of the mortgage instrument as it now stands, the mortgagor, though he may, is case of default, be liable to be sued by the mortgagee upon the covenant to pay at the time stipulated, may claim redemption and reconveyance on payment at any time after the stipulated date and the mortgagee cannot bring a suit for foreclosure (Teulon v. Curtis and Curtis v. Holcombe) inasmuch as the right of redemption, even after the expiration of the time stipulated in the covenant for repayment, is secured to the mortgagor by the mortgage instrument itself. The exercise of the equitable right of redemption after the expiration of the stipulated time,—an equitable right which is contrary to the contract of the parties, is liable to be restrained by a Court of Equity (see Spence's ‘Equitable Jurisdiction of the Court of Chancery’—volume II, page 674), but the exercise of a right of redemption existing by the contract of the parties themselves cannot be thus restrained (Robbins on ‘Mortgages’—page 14; Fisher on ‘Mortgages,’ part II, chapter I, paragraphs 10 and 12 and Thumbasawmy Mudally v. Mahomed Hossain Rowthan).

This appears to be the reason why under the Transfer of Property Act there is no right of foreclosure either in the case of a simple mortgage or of a usufructuary mortgage, as such, but such right is given only in the case of an English mortgage and an Indian mortgage by conditional sale, which corresponds to an English mortgage, in that according to the contract of parties the sale becomes absolute in default of payment of the mortgage money at the stipulated date, but on payment being made at the stipulated date, the sale becomes void or the mortgagor entitled to a reconveyance of the property. Further, in the case of an English mortgage as defined by the Transfer of Property Act the mortgagor under the Common Law of England can only sue the mortgagee and for breach of covenant to reconvey if he tenders the mortgage money on the due date. But a Court of Equity would decree redemption and reconveyance, not only of the mortgage money be tendered on or before the due date, but also even if default be made and the mortgage money is tendered after the due date.

Though it would seem the mortgage in question is not strictly an English mortgage, and the mortgagee has no right of fore closure, yet, but for the Full Bench decision of this Court in Ramchandra Rayaguru v. Modhu Padhi following the Full Bench decision of the Calcutta High Court in Girwar Singh v. Thakur Narain Singh, the suit would seem to be governed by article 147 and not by article 132 of the Limitation Act. The transaction is undoubtedly a ‘mortgage’ and not a mere ‘charge.’ There is a transfer, to the mortgagee, of an interest and in fact of ownership, in the mortgaged property; and it is impossible to maintain that the transaction is not a mortgage but that the coffee estate is simply made a security by way of ‘charge’ for the payment of money to the mortgagee. If article 147 does not apply the result would he that the suit would he governed by article 120, which prescribes a period of six years for suits for which no period of limitation is specially provided.

There is nothing in the Limitation Act to restrict article 147 of English mortgages, and the very fact that it is not restricted like the immediately preceding article (146) to a chartered High Court in the exercise of its ordinary original civil jurisdiction shows that it is one of general application to all suits by a mortgagee for foreclosure or sale.

On principle it is not easy to see why the class of suits referred to in article 147 should be regarded as suits for foreclosure or in the alternative, for sale. Neither under the English law nor under the Transfer of Property Act is there such a class of suits. There seem to be only three descriptions of suits—namely, (i) suit for foreclosure, (ii) suits for sale and (iii) suits for redemption; (vide Provincial Small Cause Courts Act, 1887, second schedule, article 6); and there is no fourth class of suits—viz., suits for foreclosure or sale in the alternative. The result of construing article 147 as applying to suits for foreclosure or, in the alternative, for sale, would be that a suit for foreclosure of a mortgage by conditional sale, in regard to which there is no-right of sale (section 67(a), Transfer of Property Act) and in respect of which therefore no suit could be brought for foreclosure or in the alternative for sale, would he governed by article 120 (six years) and not by article 147 (sixty years) of the Limitation Act.

Form No. 109 of schedule IV to the Civil Procedure Code does not appear to prescribe the form for a suit in the alternative for foreclosure or sale. It gives in one the form for a suit for foreclosure as well as for a suit for sale, in both of which the mortgagee in the plaintiff and the mortgagor the defendant. The form is intended to be adopted to either suit according to circumstances. It will be noticed that no form other than No. 109 is given for a suit for sale. In a foreclosure action in England it is recommended that as a general rule it will be well to claim in the alternative a foreclosure or sale (Robbins on ‘Mortgages’ page 1018, citing Jenkin v. Row Kerrick v. Soffery) and there is no objection in a foreclosure suit under the Transfer of Property Act to take the same course and adopt form No. 109 almost in its entirety. In Tenkin v. Row above referred to, the Vice-Chancellor observed that “although the foreclosure only was asked by the claim, the Court could, without requiring it to be amended, make an order for sale on the present claim.”

A reference to section 86 of the Transfer of Property Act shows that in a suit for foreclosure, the decree, after providing for redemption by the mortgagor,—the defendant in the suit,—declares that, in default of redemption on or before a day to be fixed by the Court, the defendant shall be absolutely debarred of all right to redeem the property. And the second paragraph of section 88 shows that in such a suit the Court may, at the instance of the plaintiff—the mortgagee—or of any person interested either in the mortgage money or in the right of redemption, if it thinks fit, pass a decree for sale in lieu of a decree for foreclosure. It will thus be seen that the suit is only a suit for foreclosure and not one in the alternative for sale, but that in such suit either at the instance of the plaintiff—the mortgagee—or of the defendant—the mortgagor—or of any other party to the suit interested either in the mortgage money or in the right of redemption, the Court may pass a decree for sale instead of a decree for foreclosure [see also section 25(2) of the Conveyancing Act, 1881, 44 & 45 Vict., cap. 41].

Similarly in every suit for sale, the decree, after providing for redemption by the mortgagor—the defendant—declares that the mortgaged property or a sufficient part thereof be sold, in default of the defendant redeeming the mortgage by payment on or before the day specified in the decree (section 88, paragraph 1, and section 86, paragraphs 1 and 2 of the Transfer of Property Act).

So in a suit for redemption, the decree, after providing for redemption by payment of the mortgage money on or before a date specified in the decree, declares that, if such payment is not made on or before such day, the plaintiff—the mortgagor— shall (unless the mortgage be simple or usufructuary) be foreclosed of his right to redeem, or (unless the mortgage be by conditional sale) that the property behold. Section 93, paragraphs 2, 3 and 4 of the Transfer of Property Act provides that, if such payment be not made, the defendant—the mortgagee—may either apply for foreclosure absolute or apply for an order absolute that the mortgage property be sold.

The whole Scheme of the Act clearly shows that whether the suit he one for foreclosure, or one for sale, or one for redemption, the decree may, according to circumstances, provide for one or other of the remedies also; and this is so because the period of limitation is one and the same for all the three classes of suits. But under the Limitation Acts XIV of 1859 and IX of 1871, while sixty years were prescribed for a redemption suit, no period of limitation was specially prescribed for suits either for sale of mortgaged property or for foreclosure. Under Act IX of 1871, article 132 (corresponding to article 132 of Act XV of 1877) was applied to suits for sale of immoveable property, whether the same was mortgaged or merely charged for the debt and under Act XIV of 1859, clause 12 of section 1, prescribing a period of twelve years for recovery of any interest in immoveable property was applied to the same. These anomalies were removed when Act XV of 1877 was passed, which extended the sixty years' period prescribed for redemption of mortgages to suits by a mortgagee for foreclosure or for sale. But in the case of ‘charges’ on immoveable property not ammounting to a ‘mortgage,’ the period of twelve years was retained for a suit to enforce the charge by sale. It need hardly be added that there is no suit for foreclosure or redemption in the case of a mere ‘charge’ (section 100, Transfer of Property Act) Tennant v. Trenchard).

Article 135 of Act XV of 1877 does not seem to militate against this principle, for it relates to a suit which in reality is in the nature of a suit in ejectment by a mortgagee against the mortgagor and the twelve years' period is accordingly prescribed by that article.

Whethere the Indian Limitation Act XV of 1877 be construed independently of or in conjunction with the Transfer of Property Act, the conclusion to be arrived at seem to us to be the same. The distinction between a mere ‘charge’ and a ‘mortgage’ is not one created by the Transfer of Property Act, though it points out the distinction clearly; the distinction existed here prior to the Transfer of Property Act as it always has existed and does exist under the English Law, Moreover, there being no definition of ‘mortgage’ and ‘charge’ in the Indian Law of Limitation, these expressions will have, to be construed in that Act in accordance with their meaning in the substantive law of the land relating to mortgages and charges, which is now embodied in the Transfer of Property Act.

The view indicated above is fully supported by the Full Bench decisions of the Bombay High Court in Motiram v. Vitai and Datto Dudheshvar v. Vithu and of the Allahabad High Court in Shib Lal…(Defendant); v. Ganga Prasad…(Plaintiff).*., but is opposed to the Full Bench decision of the Calcutta High Court in Girwar Singh v. Thakur Narain Singh and is not in accordance with the opinion of the majority in the Full Bench decision of this Court in Ramachandra Rayaguru v. Modhu Padhi.

This question of law arising in the case being one of great importance, before this appeal is finally decided, we refer the following question to a Full Bench:—

“Whether a suit for sale by a mortgagee under the annexed mortgage deed (exhibit A) is governed by articles 132, 147, 120 or any other and which article of the Indian Limitation Act?”

The case came on for hearing, in, due course before the Full Bench constituted as above.

Kusturiranga Ayyangar for appellant:—The question referred for the decision of the Full Bench is what article of the Limitation Act applies, to the mortgage in question. [He read exhibit A.] The Subordinate Judge held that the mortgage in question is an English mortgage, but the Divisional Bench which referred the case to the Full Bench dissented from that view. It is submitted that article 147 is applicable to the present case. Article 132 cannot govern it, for it applies only to “charges”, whereas in the present case there is the transfer of at least an interest, (if not the whole ownership) in the property. There being something more than a charge, article 132 does not apply. If articles 147 and 132 do not apply, the only other article that can be applicable is article 120, which prescribes a period of six years. A mere charge should not enjoy a longer period of limitation than an interest such as has been transferred in the present case. The construction put by the majority of the Court in Ramachandra Rayaguru v. Modhu Padhi, on the phrase “foreclosure or sale,” is, I submit, untenable. There are only three descriptions of suits: (1) suits for foreclosure, (2) suits for sale, and (3) suits for redemption. There is not a fourth class, consisting of suits for foreclosure or, in the alternative, for sale, as the case of Ramachandra Rayaguru v. Modhu Padhi seems to assume. My contention is that article 147 applies to the present case, even though the mortgage in question is not an “English mortgage,”—as the referring Bench has decided. It is submitted that article 147 comprises (1) suits for foreclosure, (2) suits for sale, and (3) suits for foreclosure or for sale in the alternative. One distinction between Ramachandra Rayaguru v. Modhu Padhi and the present one is that the majority of Judges there held the instrument in question to be a “charge,” whether rightly or wrongly; and so applied article 132. The present case is not a charge. It is a mortgage. So article 147 applies. The two learned Judges who differed from the majority in Ramachandra Rayaguru v. Modhu Padhi held that the instrument in question there was a mortgage (not a mere hypothecation or charge) and so they applied article 147. The reasoning of those two learned Judges is entirely in my favour. [He was stopped.]

Sivagnana Mudaliar for respondents Nos. 1 and 3:—In construing the Limitation Act of 1877, reference should not he made to the Transfer of Property Act which was passed only in 1882. [On this point he referred to Aliba v. Nanu and Rangasami v. Muttuhumarappa.] [Bhashyam Ayyangar, J.—Under Act IX of 1871, there was no provision for an English mortgage suing for foreclosure. The present Act XV of 1877 removed that defect.] I contend that article 147 applies to suits for foreclosure or in the alternative for sale. [He referred to articles 123, 48 and 49, as throwing light on the construction of article 147.] When the Legislature has desired to give a distributive meaning, it has used the word “for” also. [Bhashyam Ayyangar, J.—If that contention is right, then a suit for foreclosure only would be governed not by article 147 or 132, but by the six years' rule prescribed by article 120.] I am supported by the decisions of the Madras and the Calcutta High Courts. The majority of the Judges in Ramachandra Rayaguru v. Medhu Padhi were in favour of my contention.

JUDGMENT

In our judgment the period of limitation for a suit for sale under the instrument in question in the present case is that prescribed by article 147 of the second schedule to the. Limitation Act.

In Ramachandra Rayaguru v. Mhdhu Padhi, Shephard, J., dealt with the case upon the supposition that the instrument then before the Court was a charge not amounting to a mortgage and held that article 132, which relates to suits to enforce by judicial sale payment of money charged on immoveable property, applied.

In the present case it is quite clear that the instrument is a mortgage. In the case referred to, Subrahmania Ayyar, J., was of opinion that the article applicable was article 132, on the ground that the words “by a mortgagee for foreclosure or sale in article 147” referred only to a suit for foreclosure or sale in the alternative. We do not think this is the right construction of the article. For the reasons stated in the order of reference which we substantially adopt, we think the article applies to a suit by a mortgagee whether the suit is one for foreclosure (see sections 86 and 87 and paragraph 2 of section 88 of the Transfer of Property Act), or one for sale (see paragraph 1 of section 88 and section 89 of the Transfer of Property Act), and, in the former case, whether the prayer in the plaint is for foreclosure alone, or is coupled with a prayer in the alternative for sale in lieu of a decree for foreclosure.

We do not agree with the view of the Calcutta High Court that article 147 applies only in the case of an English mortgage and we agree with the decisions of the Bombay and Allahabad High Courts, in the cases referred to in the order of reference.