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  • Article 134 of the Indian Limitation Act (No. IX of 1904).
  • Article 148 of the Indian Limitation Act (No. IX of 1908)
  • Article 144 of the Limitation Act,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Acts
  • Article 134 of the Indian Limitation Act (No. IX of 1904).
  • Article 148 of the Indian Limitation Act (No. IX of 1908)
  • Article 144 of the Limitation Act,
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Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

The opinion concerns two Letters Patent Appeals arising from a suit for redemption of a mortgage affecting land in Shahgunj, Agra City. The material factual and procedural points set out in the opinion are:

  • Hansa was the owner of land on which a kutcha house and chaupal stood. In the year recorded as "1S61" Hansa mortgaged the land with possession to Hargobind in respect of Rs. 20.
  • On 30 June 1863 Hansa sold his equity of redemption to Jugal Kishore (predecessor of the present plaintiffs). Jugal Kishore sued for redemption and obtained a decree on 6 October 1863, conditional on payment of Rs. 20; no period for payment was fixed and the money was not paid pursuant to that decree.
  • Hargobind pulled down the original kutcha structures and built a shop and a balikhana at a stated cost of Rs. 5,500, and remained in possession until a later date noted in the opinion (text shows "1989" which appears to be a typographical error in the source).
  • Hargobind subsequently mortgaged the property to Khubi Ram, and after further charges a decree for sale was obtained by Khubi Ram's heirs on 25 May 1901. The property was sold in execution on 1 August 1902 and purchased by those decree-holders (auction-purchasers), who later sold to the present defendants by two sale-deeds dated 29 January 1904 and 22 May 1905.
  • The present suit for redemption (filed by the plaintiffs on 26 March 1915) sought to redeem the mortgage alleged to have been made by Hansa (the opinion contains both "1861" and "1881" references in different places in the text).
  • The trial Court held that the plaintiffs' claim was not barred by limitation, that a second suit for redemption was maintainable, and decreed redemption on payment of Rs. 20, but awarded Rs. 100 for reconstruction of one house; the net decree required payment of Rs. 120 for possession including certain improvements. The first appellate Court upheld that decree.
  • On second appeal to this Court (Single Judge) it was found that the heirs of Khubi Ram had been in adverse possession since 1 August 1902 and the defendants since their purchases, but the Single Judge held that the defendants could not tack their possession to that of their predecessors and thus dismissed the appeal except that the defendants were allowed to remove construction materials subject to restoring the land to its condition at the mortgage date.
  • The present decision reverses the Single Judge and the Courts below and dismisses the plaintiffs' suit with costs; it also dismisses the plaintiffs' Letters Patent Appeal No. 131 of 1919 with costs.

Legal Issues Presented

  1. Whether Article 134 of the Indian Limitation Act (No. IX of 1904) is applicable to the present suit and, if so, how it affects the plaintiffs' right to redeem.
  2. Whether, irrespective of Article 134, the defendants (or those from whom they derived title) had perfected an adverse title by possession for more than twelve years prior to the suit such that the plaintiffs' redemption claim is barred.
  3. Whether Article 148 (and related provisions) of the Limitation Act applies to purchasers who acquired rights from the mortgagee or under an execution sale, and conversely whether Article 144 governs where transfer did not confer the mortgagee's interest.
  4. Whether the period of possession of auction-purchasers (or other predecessors-in-possession) could be tacked to the possession of successors who derive title through them, thereby completing the statutory period of adverse possession.

Arguments of the Parties

Plaintiffs' Arguments

  • The plaintiffs maintained their right to redeem the mortgage; the trial Court accepted that a second suit for redemption was maintainable and granted redemption upon payment of Rs. 20 (with adjustments for reconstruction costs).
  • — (The opinion records that the plaintiffs' learned counsel conceded that tacking is permissible where a successor derives title from a holder who had similar adverse possession; beyond that concession, the text does not provide a fuller enumeration of the plaintiffs' oral or written submissions.)

Defendants' Arguments

  • The defendants (and their predecessors) asserted adverse possession, and contended that the plaintiffs were not entitled to recover possession without making due payment for constructions and improvements carried out while the defendants' predecessors were in possession.
  • Specifically, one plea urged at trial was that Hargobind (predecessor) had built shops and apartments at considerable cost and that the plaintiffs should be required to pay for those constructions if they sought to regain possession.
  • The defendants relied on a contention that their possession (being that of purchasers from the auction purchasers) should be treated as completing the statutory period of adverse possession and thus defeat the plaintiffs' redemption claim.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Husaini Khanam v. Husain Khan, 29 A. 471 at p.480; A.W.N. (1907) 133; 4 A.L.J. 375 Interpreting Article 134: a transfer referred to in Article 134 must be a transfer with possession or followed by possession as a necessary incident. The Court cited this authority to explain that Article 134 applies only where transfer conveyed possession as an incident; if transfer lacks delivery of possession then Article 144 may apply.
Mulla Vittil Sesti Kutti v. Kunhi Pathumma, 43 Ind. Cas. 31; 40 M. 1040; 33 M.L.J. 620 Support for the principle that transfer under Article 134 requires transfer with possession. Used alongside Husaini Khanam to underline that Article 134 presupposes transfer with possession and does not apply where possession was not part of the transfer.
Ammu v. Ramakishna Sastri, 2 M. 226; 1 Ind. Dec. (N.S.) 429 Article 148 applies only to suits for redemption against mortgagees or persons claiming under them (except purchasers for value); it does not apply to suits against strangers nor to suits which are not suits for redemption in the specified sense. The Court relied on this authority to hold that Article 148 could not apply to the present suit because the purchasers had not purchased the mortgagee interest as such.
Chinto v. Janki, 18 B. 51; 9 Ind. Dec. (N.S.) 542 Where land mortgaged with possession is ousted by another who deals with it as his own for 40 years, a suit for redemption by the mortgagor is governed by Article 144 and may fail if adverse possession by the defendant exceeds 12 years. The Court used this decision to illustrate that where purchasers have dealt with the property as proprietors, Article 144 (rather than Article 148) governs and bars redemption if adverse possession exceeds twelve years.
Ahamed Kutti v. Raman Nambudri, 25 M. 99; 11 M.L.J. 323 Involuntary sales (execution sales) are excluded from the operation of Article 134 (i.e., transfers by involuntary sale do not import the protection of Article 134). The Court cited this and similar decisions to conclude that the auction/involuntary-sale purchasers did not take by a transfer that invoked Article 134.
Bhagvean Sahai v. Bhagwan Din, 9 A. 97; A.W.N. (1886) 303; 5 Ind. Dec. (N.S.) 496 Authority supporting the proposition that involuntary sale is excluded from Article 134's operation. Referred to by the Court to justify excluding Article 134 where a vendor's rights were acquired by an involuntary sale.
Shennath Singh v. Mahipal Singh, 2 A.L.J. 234; A.W.N. (1905) 56 Similar authority that involuntary sales do not attract the protections of Article 134. Applied to support the Court's view that the auction-purchasers' acquisition was involuntary and therefore did not import Article 134 protection.
Babu Ram v. Banke Bihari Lal, 3 A.L.J. 424; A.W.N. (1906) 184 Held that where the period of possession of a trespasser and his predecessor-in-title extended over 12 years, the possessor acquired an absolute title to the property. The Court relied on this case to support the proposition that possession by a trespasser and successor-in-possession can combine to perfect title if the statutory period is satisfied.
Halsbury's Laws of England, Vol. 19, p.157 (text authority) Statement that a person in possession without title has a transmissible and inheritable interest which, if succeeded in possession by another who holds until the statutory period expires, allows the successor to claim as if he had the whole period of possession. The Court cited this doctrinal passage to justify tacking: a successor who holds through the statutory period acquires the same right as if he had occupied the property for the entire period.

Court's Reasoning and Analysis

The Court's analysis proceeds by distinguishing statutory articles of the Limitation Act, examining the nature of the transfers and possession, and applying authorities about tacking of possession. The key steps in the Court's reasoning as set out in the opinion are:

  1. The Court observed that the question of Article 134's applicability had been heavily argued, but the central issue was whether the defendants had perfected adverse title by holding possession for more than twelve years prior to the suit, irrespective of Article 134.
  2. The Court explained the statutory scheme: Article 143 protects the mortgagor against the mortgagee in possession; Article 134 protects persons who received by transfer from the mortgagee larger rights than the mortgagee could give, but Article 134 presupposes a transfer accompanied by possession. Where a transfer lacked delivery of possession, Article 144 may govern when possession is obtained later and becomes adverse for more than twelve years.
  3. Applying facts: Hargobind mortgaged what he professed to be his proprietary interest; later, following mortgages and a decree, the property was sold in execution. The auction-purchasers bought what was described as the proprietary interest (not the mortgagee interest) and remained in possession; they in turn sold to the present defendants, who have been in possession since their purchases.
  4. The Court held that a mortgagee is generally estopped from denying a mortgagor's title, but where property passes to a third party who purchases in good faith the vendor's proprietary interest (and the vendor represented he held that interest), that transfer does not amount to a transfer of the mortgagee interest so as to bring Article 148 into play. The Court relied on Ammu v. Ramakishna Sastri and Chinto v. Janki to show Article 148's limited application and to indicate that Article 144, not Article 148, governs in these circumstances.
  5. The Court concluded Article 134 was excluded because the defendants' vendors had not purchased from the mortgagee by a voluntary transfer; they had acquired rights by an involuntary sale (execution sale), and decisions cited (Ahamed Kutti, Bhagvean Sahai, Shennath Singh) exclude involuntary sales from Article 134's operation.
  6. Nevertheless, even an action-purchaser (purchaser at execution sale) may, unless he purchased the mortgagee interest as such, acquire adverse rights by possession for more than twelve years. Thus the question reduced to whether possession by the auction-purchasers could be tacked to the possession of the defendants who derived title from them.
  7. The Court reviewed the principle (citing Halsbury and Babu Ram) that a person in possession without title has a transmissible and inheritable interest which a successor-in-possession can inherit; if a successor holds until the expiry of the statutory period, that successor has as good a right as if he himself had occupied for the whole period. The plaintiffs' counsel had conceded that tacking is permissible where a successor derives title from a holder who had similar possession.
  8. The Single Judge's sole ground for excluding the defendants' claim was that the possession of the auction-purchasers could not be tacked to the possession of their successors; the Court found that ground unsustainable in light of the authorities and principles just described.
  9. On the basis that the defendants (through succession from auction-purchasers) were entitled to rely on adverse possession for the statutory period, the Court allowed the defendants' appeal, set aside the decrees of the Single Judge and the Courts below, and dismissed the plaintiffs' suit with costs.

Holding and Implications

Core Ruling: The Court allowed the defendants' appeal, set aside the decrees of the Single Judge and the Courts below, and DISMISSED the plaintiffs' suit with costs. The plaintiffs' Letters Patent Appeal No. 131 of 1919 was also dismissed with costs (including fees on the higher scale in this Court).

Consequences and immediate effect:

  • The decree previously issued in favour of the plaintiffs (requiring payment of Rs. 120 and granting possession) is set aside; the plaintiffs' claim for redemption is dismissed.
  • The defendants (having derived title from the auction-purchasers and having been in possession) succeed on the basis that adverse possession (including tacked possession from predecessors) completed the statutory period and defeated the plaintiffs' redemption claim.
  • The Court ordered costs against the plaintiffs throughout, including higher scale fees in this Court.

The opinion does not frame any extended or novel rule of general applicability beyond the application to the facts of this case; it reverses the lower Courts' findings on tacking and adverse possession and applies established authorities to hold that successors-in-possession who complete the statutory period acquire rights that can defeat a redemption suit.

Show full summary ...

    Musammat Ram Piari And Ors. v. Budhsain And Ors.

    1. These are two Letters Patent Appeals arising out of a suit for redemption. It appears that Hansa was the owner of some land situated in Shahgunj in the Agra City, whereon stood a kutcha house and chaupal. In 1S61 he mortgaged with possession the paid land with the kutcha house and chaupal standing thereon to Hargobind in lien of Rs. 20. On the 30th of June 1863, Hansa sold his equity of redemption in that property to Jugal Kiehore, the predecessor in interest of the present plaintiffs. Jugal Kishore filed a suit for redemption and obtained a decree on the 6th of October 1863, conditional on his paying Rs. 20 to the mortgagee. No time was fixed by the decree for the payment of that money, and no money was in fact paid to Hurgobind in pursuance it. Whether that was due to some private arrangement with Hargobinod or some other cause is not clear.

    2. Hargobind subsequently pulled down the kutcha kotha and chaupal standing thereon and built a shop and a balikhana at a cost, of Rs. 5,500. He rmained in possesion of that property till 1989, when ha mortgaged the Bhop and bilakhnni, which the land upon which they stood, to one Khubi Ram, describe himself as the absolute owner of that property, This mortgage was limited. Later on, he executed two duels of further charge in favour of Khubi Ram. On the 25th of May 1901 the heirs of Khubi Ram got a decree for sale on foot of those deeds and in execution of that decree the property in question was sold by auction on the 1st of August 1902 and purchased by the decree-holder themselves. The auction purchasers subsequently sold their rights in the said property to the present defendants by two sale-deeds, one of which was executed on the 29th of January 1904 and the other on the 22od of May 1905

    3. The present suit was filed by the plaintiffs on the 26th of March 1915 for the redemption of the mortgage made by Hansa in 1881. The Court of first, instance dame to the conclusion that the claim was not barred by limitation, that a second suit for redemption was maintainable, and that the plaintiffs were entitled to a decree for redemption on payment of Rs, 20 on account of the principal sum secured by the mortgage. One of the pleas urged by the defendants was that their predecessor, Har Gibind, had built shops and other apartments on the land in dispute at a considerable cost and that the plaintiffs were not entitled to get back the property without paying the costs of the constructions made by him. The Court of first instance found that one of the houses originally existing on the disputed land had fallen down and that the mortgagee was justified in re-building it. It, therefore, allowed Rs. 100 on account of the cost of its re-construction, In regard to the remaining buildings, standing on the land, its finding was that those buildings had been constructed in order to improve the house and that the plaintiffs were not liable for the costs of those improvements. The decree passed by that Court, consequently, was that the plaintiffs should get possession of the property, including the improvements made by the mortgage, on payment of Rs. 120 to the defendants. That decree was upheld by the Court of first appeal, On second appeal to this Court, which tame up before a Single Judge, it was field that, although the predecessors in title of the defendants, namely, the heirs of Khubi Ram, had been in adverse possession of the disputed property since the 1st of August 1902, and had been sneered by the defendants, who had been in adverse possession from the date of their purchase, the defendants were not entitled to took on the period of their adverse possession to the period of the adverse possession held by the heirs of Khubh Ram. On that ground alone the learned Judge dismissed the appeal, except in so far that he allowed the defendants to remove the materials of the constructions made by their predecessor in title subject to their undertaking to restore the land to the condition in which it was, with the buildings as they stood on the date of the mortgage.

    4. A considerable argument has been addressed to us in regard to the applicability of Article 134 of the Indian Limitation Act (No. IX of 1904). That point appears to have been pressed also in the Courts below, and seems to have very much obscured the main issue involved in the ease, namely, whether, irrespective of Article 134, the defendants had perfected their adverse title by possession for more than twelve years prior to the suit. Article 143 is intended to protect the interest of the mortgagor against the mortgagee in possession or the person who holds the interest of the mortgagee, including his heirs or assigns as such. Article 134 is designed to protect the interest of the persons in possession who have obtained by transfer from the mortgagee larger rights than those which the mortgagee was competent to transfer, for valuable consideration, and have remained in unqualified enjoyment of the same for more than twelve years from the date of the transfer. As pointed out in Husaini Khanam v. Husain Khan 29 A. 471 at P. 480 : A.W.N. (1907) 133 : 4 A.L.J. 375 and Mulla Vittil Sesti Kutti v. Kunhi Pathumma 43 Ind. Cas. 31 : 40 M. 1040 : 33 M.L.J. 620 : (1917) M.W.N. 609 : 22 M.L.T. 236 : 6 L.W. 464 (F.B.), the transfer referred to in Article 134 is a transfer with possession or followed by possession as a necessary incident or ingredient of it. If a transfer is not according by the delivery of possession, Article 144 may coma into operation, when possession is obtained afterwards and held adversely for more than twelve years. We have, therefore, to consider whether that Article is applicable in view of the findings here arrived at.

    5. In the present case what Hargobind mortgaged with Ehubi Ram was the proprietary interest which he believed and professed or pretended to have held in the disputed property. In pursuance of that mortgage and the farther mortgages which had been made thereafter, a degree was obtained by the mortgagee and the property was sold in execution of that decree. The property mortgaged was not the mortgagee interest of Hargobind but the so sailed proprietary interest which he claimed to have held in that property. The auction-purchasers, similarly, had not purchaaed the mortgagee interest of Hargobind but had purchased what was described as his proprietary interest. They remained in possession of that proprietary interest from the date of their purchase and afterwards they sold their proprietary interest to the present defendants who have since been in possession of the same. A mortgagee, it is true, is estopped from denying the title of a mortgagor or from setting up avdverse possession against him, but where the property mortgaged has pissed from the mortgagee to a third party, who has obtained rights therein for valuable consideration in good faith and in full belief that he was purchasing the transferor's proprietary interest and the transferor represented that he held that proprietary interest, it cannot be said that such a transfer is a transfer of the mortgagee interest, so as to render Article 148 of the Indian Limitation Act (No. IX of 1908) applicable. In Ammu v. Ramakishna Sastri 2 M. 226 : 1 Ind. Dec. (N.S.) 429 it was held that Article 148 applied only to suits for redemption and to such suits as might be instituted against mortgagees or persons claiming under them, except purchasers for value, but it did not apply to suits against strangers, nor to suits which were not suits for redemption. In Chinto v. Janki 18 B. 51 : 9 Ind. Dec. (N.S.) 542 it was similarly held that where land was mortgaged with possession to a certain person and that person was ousted from possession by another who remained in possession of the said land and dealt with it as his own for 40 years, a suit for redemption brought by the mortgagor or His legal heirs would not fall under Article 148, but would be governed by Article 144 of the Limitation Act, and would fail if the person in possession succeeded in proving that his possession was adverse to the mortgagor for more than 12 years prior to the suit. Article 148 cannot, therefore, apply to the present suit; and if that Article does not apply, the only other possible Article that can apply is Article 144. Article 134 is excluded by the fact that the vendors of the defendants had not purchased from the mortgagee. They bad acquired their rights by virtue of an involuntary sale, which, according to the decisions in Ahamed Kutti v. Raman Nambudri 25 M. 99 : 11 M.L.J. 323, Bhagvean Sahai v. Bhagwan Din 9 A. 97 : A.W.N. (1886) 303 : 5 Ind. Dec. (N.S.) 496 and Shennath Singh v. Mahipal Singh 2 A.L.J. 234 : A.W.N. (1905) 56, is excluded from its operation. But even an action-purchaser may, unless he is a purchaser of the mortgagee interest as such, remain in possession of the property purchased for more than twelve years, and may acquire adverse rights by virtue of his possession. The defendants are, therefore, entitled to claim that, if their possession has been adverse for more than 12 years, they cannot be ousted from the property, The only ground upon which the learned Judge of this Court found adversely against the present defendants was that the possession of the previous holders, namely, the action-purchasers, could not be took on to the possession of those who bad derived their title from them. But it is well settled that a person who is in possession of land without title has, while he continues in possession and before the statutory period has elapsed, a transmissible and inheritable interest in the property, but that interest is liable at any moment to be defeated by the entry of the rightful owner ; and if such person is succeeded in possession by one, claiming through him, who holds till the expiration of the statutory period, such a successor has then as good a right to the possession as if he himself had occupied for the whole period." (Halsbury's Laws of England Volume 19, page 157). In Babu Ram v. Banke Bihari Lal 3 A.L.J. 424 : A.W.N. (1906) 184 it was, accordingly, held that if the period of possession of a trespasser and his predeoessor-in title who was also a trespasser extended over a period of 12 years, he acquired an absolute title to the property of which he had been thus in possession. In fact, the learned Counsel for the plaintiffs concedes that such tasking is permissible in the case of a person who has derived his title from a holder who had been in similar possession of the disputed property. That being so, the ground on which the learned Judge proceeded cannot be sustained.

    6. We allow the appeal of the defendants, set aside the decree of the Single Judge and of the Courts below, and dismiss the plaintiffs suit with costs through out, including in this Court fees on the higher scale. We dismiss the appeal, filed by the plaintiffs, Letters Patent Appeal No. 131 of 1919 with costs including in this Court fees on the higher scale.

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    Comments

    Musammat Ram Piari And Ors. v. Budhsain And Ors.
    (Jul 17, 1920)