Prannath Roy Chowdry v. Rookea Begum, Syed Aman Ally, and Ram Rutton Rae (India)

~ ~ A B B A ~ ROY C H O ~ ~ R Y , - ~ ~ e ~ ~ m ~ ; ~ O O ~ E ~ B ~ G ~ ~ ~ , SPED AMAK

ALLY, and RAH R U ~ T O N ~ ~ ~ , - ~ e ~ p ~ * ~ e ~ ~ ~ * [July 7 and 8, 18591.

On/ uppml from i%e S d e r Bemmmy Adawlut at ~ ~ ~ e ~ ~ t ~ .

A Byebil-wuff a, or gut-kubala (mortgage or conditional sale), i s redeemable

like an ordinary mortgage, and is subject to foreclosure.

When a mortgagee seeks to foreclom, he must effect that object according to the

mode prescribed by Ben. Regs, 111, of 1793, sec. 14; 11. of 1803, sec. 3 ; and

XYII. of 1806, secs. 7 and 8 [7 Moo. Ind. App. 3581.

The pendency of litigation as to the ownership of the equity of r e d e ~ p t i o ~ l j

between the heirs of the I~~ortgagor and a party claiming as purc~aser, is

a “ good and sufticient cause ” within the exception to the operation of the

Ben. Beg. of limitation, 111. of 1793, sec. 14, wily a mortgagee should not have

instituted proceedings for foreclosure, within twelve years, the time pre-

scribed by that Regulation [7 Moo. Ind. App. 3571.

The service of notice of foreclosure on the occupant of the n~or~gaged property

(a party who claimed as purchaser from the mortgagor, but who had not

esta~lished his title), does not estup the mortgagee from d i spu t in~ the

occupant’s title to redeem the n ~ o r t g a ~ e d premises.

Payment into Court of the mortgage-money by the occupant of the mortgaged

property, accompanied with a pretest and a threat of legal proceedings

to recover the amount paid into Court, is not a good tender, or such a tender

as is conte~plated by the Ben. Reg. XVII. of 1806, Secs. ? and 8.

Section 7 of Ben. Xeg. XTIII. of 1806, provides for the equitable right of re-

dernp~ion “ tu the mortgagor and the owner of such property, or h i s legal

~ep resen ta t~~e .” Whether a tender of the mortgage money and interest by

a stranger, though in possession of the mortgaged property, is a good tender,

&were2

When a case i s brought by appeaI before the Sudder ~ e w a n n y Court, the whole

cause is before that Court, although the appeal is limited to a single issue.

A cross appeal is not necessary.

This suit was brought to obtain possession of a dwelling-house, land and premises,

which had been E3241 foreclosed by the Appellant in giving effect to two deeds of

conditional sale and mortgage, called deeds of Bye-bil-wuffa, or Kut-kubala. The

principal question raised was, whether the suit was barred by the Regulations of

limitation III. of 1793, sec. 14, and 11. of 1805, see. 3, cl. 3 and 4. The Sudder Court

held, that as there had been twelve years’ possession by one of the Resipondents, Ram

Rutton Xae, the suit of the Appellant was barred.

The suit arose under these c ~ r c u ~ s t a n c e s :-

Meer Sydoo and Boor Jehan his nekahee wife, were, in 1825, in the possession

and enjoyment of a house and land, part of the premises in question, situate in the

village of Cossipore, in the subuebs of Calcutta, under a pottah made out in the

sole name of Noor Jehan.

On 23rd of March, 1825, Meer Sydoo and Noor Jehan jointly borrowed

of the Appellant the sum of S. Rs. 4001 in cash, and at the last-mentioned date jointly

executed and delivered to him a K u ~ k u b a ~ a or Bye-~il-wuff~ (deed of c o n d ~ t ~ o n a ~

sale) in the following form :-“ To the high in dignity, Baboo Prannath Chowdry.

This mortgage deed, or Kut-kubala, of the land and garden house, held under a

Khirajee-pottah (rent lease), is executed in the year 1231, by Meer Sydoo and

Bebee Noor Jehan, uekahee wife of the said Meer, ~ n h ~ b i t a n t s of Cossipore. In

the village of Cossipore within the jurisdiction of Dihee, Punchannogram, i s our

d w ~ ~ l i n g - h o ~ ~ e , with the garden r n ~ a ~ u r i ~ g 14 ~ e e ~ ~ h s and 7 cottahs of land, the

annual rent of which is Rs. 38. 10s. 18g. Baving mortgaged the said garden

house and jumma lands, with the appu~enances, tu you, we have received Rs. $001,

* Present: ~ e n ~ b ~ r s of the Judicial Coi~imittee,-~~e Right Hon. Lord Kings-

down, the Right Hon. Sir Edward Ryan, and the Right Hon. Sir John Taylor

Coleridge.

331

Assessor,-The Right Hon. Sir Lawrence Peel.

VI1 MOORE IND. APP., 3m PRANNATH ROY CHOWDRY

as a loan [a51 through Ranichunder Bose, of Cossipore, on which we will pay

interest at one rupee per mensem j the term of payment of the money is three years,

from the date of the deed of morttage, that is, up to 11 Cheyt, 1234. We shall pay

the whole of the money with interest at once within this term. If we do not pay

the money with interest at once within the term, the sale of the said land,

with the appurtenances, will become absolute on the day after the expiration

of the term for the said amount, as consideration money, and you being in possession

of the said land after the expiration of the term, and having obtained a pottah in

your own name, shall, with your descendants, enjoy the proceeds by paying the

Government Revenue. The right of alienating the said lands, either by gift or

sale, will reet with you; we shall have no claim or objection. Any deed of payment

of money produced by us, other than that of redemption of mortgage, by repayment

of the money at once, is null; and if the money should have to be paid by the

sale or mortgage of the said land, it will be sold to you a t a reasonable rate, or

mortgaged, if it will have to be mortgaged. If we sell or mortgage to anybody

else, it will be null and void. We or our heirs shall never raise any objections

in violation of these terms; and should we do so, they will be false and null.

Having received the said amount of Rs. 4001, from hand to hand in ready money,

we have of our free will executed this mortgage deed, or Kut-kubala. Dated the

11th Cheyt of the aforesaid year.”

Some time afterwards, and on the 4th of May, 1825, Meer Sydoo and Noor

Jehan borrowed a further sum of S. Rg. 1000, from the Appellant; and at the

same time respectively executed and delivered to him [326] another Kabkubala,

to secure by a like. conditional sale of the same dwelling-house, land and premises

mentioned in the first gut-kubala, the repayment to him of the further sum borrowed,

together with interest a t the same rate, and a t the same date (namely, 11 Cheyt,

12.34)) subject to the like terms and conditions as those respectively specified in the

former instrument.

On the 25th of May, 1825, Meer Sydoo died, leaving Noor Jehan surviving, and

also two minor sons, Meer Imdad Ally and Meer Lootf Ally, who were his heirs, and

who were born to him by his regular married wife, Jeena Begum. Meer Imdad

Ally died in the year 1826, leaving Furkh-oon Nisea, his wife, and Meer Lootf Ally,

his brother, joint heirs, him surviving.

On the 3rd of July, 1827, Noor Jehan, not being able to manage her property

and payment of her debts, by a deed appointed the Respondent, Ram Rutton Rae,

her Mookhter, or attorney, for those purposes. Among other debts mentioned

in the mookhternameh was the mortgage debt due to the Appellant, under the

above-mentioned deeds, which Ram Rutton Rae was directed to pay off. The Re-

spondent, Ram Rutton Rae, accepted the office of Mookhter, and took upon himself

the duties thereof.

On the 28th of November, 1829, Lootf Ally died, leaving Rookea Begum, his late

father’s sister’s daughter, and Furkh-oon Nissa, since deceased, and Noor Jehan,

his stepmother, his joint heirs, him surviving. Afterwards, on the 6th of February,

1830, Noor Jehan also died, leaving the Respondent, Rookea Begum, her sole heir,

without having paid off by herself or through her Mookhter any part of the principal

E3271 or interest due to the Appellant under the two Hut-kubalas.

Rookea Begum and Furkh-oon Nissa afterwards executed a Kubala in favour

of the Appellant, acknowledging the mortgage debt.

Quarrels took place between the respective heirs of Meer Sydoo and Noor

Jehan, which led to summary proceedings being had under Ben. Beg. XV. of 1824,

before a Magistrate, respecting the right and possession thereof. Ram Rutton

Rae in these proceedings set up two unregistered Eubalas, or’deeds of sale, alleged

by him to have been executed respectively by Noor Jehan in his favour, on the

5th and 9th of January, 1830, and claimed to be put into possession as a purchaser

for valuable consideration, of the dwelling-house, land, and premises, together with

all other lands and premises of Noor Jehan. On the 19th of May, 1831, the

Magistrate made an order, awarding possession of the dwelling-house, land and

premises, as well as the other property, to Ram Ruttm Rae, at the same time

referring the other parties to a regular suit for the determination of their re-

spective righta

Accordingly, on the 30th of August, 1832, Rookea Begum and Furkh-oon Nissa,

332

U . ItOOKEA BEGUM f1859l Vn IIYIOOBE IND. MP., 328

brought a suit against. Ram Rutton Rae, in the Provincial Court of Calcutta, to

recover possession from him of 26 beegahs 15 cottahs of land, dwelling-house, orchard

and bazaar, which included the dwelling-hou~e, land and premises so conveyed

by the two deeds of conditional sale to the Appe~lant. The P l a ~ n t i ~ # claimed under

"

a hibbanameh, or deed of gift, alleged by them to have been executed by Noor Jehan"

in favour of Meer Imdad Ally and Lootf Ally.

"

[328] The answer of Ram Rutton Rae in this suit, denied the validity of the execu-"

tion of the hibbanameh set up by the Plaintiffs, and stated that the whole property in

suit was exclusively acquired by Noor Jehan, and that the late Meer Sydoo had no

right or title thereto, having had only the superintende~ce and ~ ~ ~ a n a ~ e m e n t thereof

given to him by the former as his nekahee wife; that she in 1829, for the 'iiquida-

tion of the claims of creditor#, had sold to him (Ram Rutton Rae) the whole of the

property, and having executed two Kubalas, gave them to him, and took the entire

a r~oun t of the purchas~money from him, putting him in possess~on of the property.

The Appellant intervened as a party to protect his rights as mortgagee, and in

his petition stated that the money secured had not been paid to him ; and prayed

that he might obtain his rights in that suit.

On the 8th of ~eptember? 1836, the original suit came on for hearing in the

District Court of the Twenty-four Pergunnahs, when the Judge by his decree

declared that the property in litigation had been acquired by Noor Jehan, and that

Meer Sydoo had no right or title to it, and that the hibbanameh was fabricated;

but that even if it were a genuine document, the same (according to the futwa of

the Moulvie of the Court) being an undefined gift was invalid by the ~ a h o m e d a n

law. The Court moreover considered that the two deeds called Kubalas set up by

Ram Rutton Rae, and his possession under them, was proved, and dismissed the

suit, reserving the right of the Appellant to bring a separate suit in respect of his

two deeds of conditional sale. The Plaintiffs appealed from that judgment tu the

Sudder Dewanny Adawlut. The ~ ~ p e l l a n t again intervened ; and, [3B] on the

21st of September, 1840, ~udgment was pronounced in the appeal by Yr. Lee

Warner against the hibbanameh, on the ground that it was invalid by the Maho-

medan law; and he declared and decreed that the 14 beegahs 7 cottahs of land

held under pottah was the exclusive property of Noor Jehan, and which she had

a right to alienate ; and that the rest of the land and premises in suit belonged to

the late Meer Sydoo. The Judge also declared that the fraud and collusion of

Ram Rutton Rae was evident in respect of the two Kubalas, alleged by him to have

been executed in his favour by Noor Jehan, when he was her Mookhter, as she was

of great age, and had lived only a few days after the dates of their alleged execution.

As to the ut-kubalas of the Appellant, the Judge declared them to be, a p p a r e ~ t l ~ ,

just, but that no Order could be passed relative to them further than that whatever

were the Appellant's rights, they should not be prejudiced by that judgment; and

that whatever might be due to him, he had a right to recover whether bjr compromise

or suit.

"he proceedings were then carried through various stages, and uItirnately

appealed to the Privy Council (see 4 Moore's Ind. App. Cases, 233), and by a final

decree it was declared that Rani Rutton Rae having been put by the court in

India in possession of the property in dispute, and the Respondents having been

directed to bring a civil suit to assert their claim in such property, and having

hrought this suit accordingly, it was incumbent on the Respondents to prove SOITE

title to the land and premises before Ram Rutton Rae was called upon to make

out hie title; and their Lordships further declared that it appeared that the deed

of possession set up by the [330] Respondents in favour of the 8ons of Meer Xydoo

was a fabricated deed, and that the Respondents had no title, under such deed,

to such property as belongedko Noor Jehan; and their Lordships further declared

that as to the lands in the name of Meer Ghazee, the then Respondents had shown no

title to such lands; and their Lordships further declared, that as to the 5 beegahs

aud 8 biswas in the name of Meer Sydoo, they appeared to have been purchased

on account of Moor Jehan: their Lordships were, therefore, of opinion, that the

decree complained of ought to be reversed, and the possession restored to Ram

Rutton Rae, but that it ought to be declared that their decree was entirely

333

VI1 BBOORE IND. UP., 931 PRANWATE ROY CHOWDRY

without prejudice to any question as to the validity of the deeds under which the

Appellant claimed, as between him and any persons claiming under Noor Jehan.

The original suit being then finally put an end to, the AppelIant took steps to

enforce his rights under the two deeds; and being desirous of foreclosing all

mortgage rights in respect to the dwelling-house, land and premises, and of render-

ing the conditional sale to him absolute, under the provisions of Ben. Beg. XVII.

of 1806, SOC. 8, on the 9th June, 1848, he instituted the necessary foreclosure pro-

ceedings, by presenting a petition to the Judge of the District of the Twenty-four

Pergunnahs; and, a t the same time, filed in the Court of that Judge the two Kut-

kubalas.

The Judge on receiving the petition on the 24th of June, 1848, issued his Per-

wannah, notifying, in terms of the Regulation, that if the property mortgaged

to the Appellant was not redeemed i n the manner provided by the 7th section of that

"

Regulation, within one year from the date of notification, [%1] the mortgage would"

be finally foreclosed, and the conditional sale would become conclusive. The

Perwannah, accompanied by a copy of the petition, was served by the order of the

Judge on each of the Respondents.

Before the expiration of the period given for redempt~on, namely, the 11th of

June, 1849, Ram Rutton Rae took upon himself to deposit in Court the principal

and interest due to the Appellant, amounting to Re. 11,486. 14. 2. The deposit

was accompanied by a petition from Ram Rutton Rae, in the nature of a protest

against the mortgage deeds of the Appellant being considered valid, and also

against his own voluntary payment and deposit thereunder, and also against the

validity of the foreclosure proceedings ; and the petition concluded with a declara-

tion that he nrould institute a regular suit for the recovery of the sum of money

d i ich he then tendered in payment to the Appellant.

3n the 7th of July, 1869, the Appellant presented a petition, submitting two

graunds for his refusal to accept the money deposited: first, that Ram Rutton Rae

had no interest whatever in the property under foreclosure, and, therefore, being

a stranger, had no right to make the tender so as to entitle him to the equitable

right of redemption which was only given to certain specified parties by the above

Regulation ; and secondly, even if otherwise, that the deposit k i n g accomp~nied

by the protest and threat, was the same as if he had made no deposit a t all, not being

a legal tender under the terms and special conditions prescribed by the Regulation.

The mortgage premises became finally foreclosed on the 25th of June, 1849,

and the conditional sale [332] to the Appellant made absolute; no other tender of

any other party having been made.

On the 17tA of September, 1849, notwithstanding the time for making the tender

had been expired, Ram Rutton Rae filed another petition, stating that he had made

no objection to the money being paid over to the Appellant; but the money thus

deposited was returned to Ram Rutton Rae under a proceeding of the Judge.

In consequence of the foreclosure having been effected and the proceeding closed,

the Appe~lant hen brought a suit to recover possession under the foreclosure of the

dwelling-house, garden, and of the 14 beegahs 7 cottahs of land included in the

two Rut-kuba’tas, together with mesne profits, from. Ram Rutton Rae. The plaint

was filed in the Zillah Court of the Twenty-four Pergunnahs. and the Respondents,

Rookea Regum, as heiress-at-law of Noor Jehan, Syed Aman Ally, l~e i r - a~ law of

Furkh-oon Nima and Ram Rutton Rae, were made Defendants. The plaint charged

fraud against Ram Rutton Rae in setting up the two Kubalas and pomessing himself

of the mortgage premises, and stated that.the Magistrate under his summary pro-

ceedings had awarded possession to him of the same, and the other portions of

Noor Jehan’s landed property, under the false ntatement of a purchase from her

and by means of the f ic t i~~ous deeds of sale. The plaint also stated the proceeding

and decrees in the original suit, and charged with reference thereto, that the

Appellant’s two Kut-kubalas had been produced and proved ; the plaint further

stated the subsequent proceedings which ended in the final foreclosure of the

mor t~age premises as aforesaid, and concluded with a prayer for po~essiox~ together

with the mesne E3331 pro& from the date of suit to the date of recovery of the

premises, besides interest and cost% of suit.

The answer of Ram Rutton Rae set up and pleaded his two alleged Kubalas as

334

v. ROOKEA REGUM [ 18591 VII MOORE IND. APP., 334

the foundation of his title to the land and premises in suit, stating that they were

respectively executed by Noor Jehan on the 23rd and 27th Poos, 1236, and that he

had obtained possession of the land and premises in suit, as well as of her entire

property ; that his purchase and possession having been proved, the Magistrate had

confirmed his possession thereof, which Order had been affirmed by the Commissioner,

and that his right had been established by the decree of Her Majesty in Council in

the original suit. The answer then pleaded the Regclation of limitation 111. of 1793,

sec. 14, as a bar to the suit ; that being in possession for about twenty years from the

date of his purchase, namely, the 23rd and 27th Poos, 1236, no claim could accrue

either to the Plaintiff, or his alleged mortgagors, after the lapse of so long a period

of time, aa the suit was barred by limitation of time under the provisions of section

14, of Ben. Reg. III., of 1793. The angwer further charged that the period of

limitation also applied to the foreclosure effected by the Plaintiff, and that the same

could not be valid because i t was not effected within twelve years from the time

stipulated for the repayment of the mortgage money; and that also the two Kut-

kubaias of the Plaintiff had become null and void by reason of the agreement of

purchase and sale entered into by him with Rookea Begum, and Furkh-oon Nissa :

and further, that the late Noor Jehan, after the expiry of the term of the Kut-kubalas,

went with the money in her hands, and repeatedly prayed the Plaintiff to receive

[334] the sun1 due to him and return the documents; and.that on Plaintiff’s refusal.

she, on the 17th Poos, of the year 1236, filed a petition, on which a notice was issued

in the Plaintiff’s name; that seventeen or eighteen years having elapsed from that

date, the limitation applied. And it was also pleaded in the answer, that the Defen-

dant had deposited the amount of principal and interest in the Judge’s Court in

the foreclosure suit, with a petition of objections against the validity of the fore-

closure proceedings; but that the Plaintiff had refused to accept the money deposited,

and the Judge had returned the same to him ; and it was lastly stated and charged

by the answer, that Rookea Begum was not the daughter of Noor Jehan’s brother,

arid, therefore, not the heir of Noor Jehan.

The other Defendants did not appear, or take any part in the suit.

The replication stated that Ram Rutton Rae was fraudulently and unjustly in

possesion of the disputed property, and that tlie plea of limitation could riot be

eiitertaiiied, for that there was no rule that the petition of foreclosure would riot be

valid if not filed within twelve years; that in such a suit, where there has been fore-

closure, the rule of limitation did not apply if the suit for possession thereunder

has been brought within twelve years from the date of foreclosure; and that as to

"

sec. 14, Ben. lteg. 111. of 1793, if it applied a t all, the Plaintiff was within tlie ex-"

ception contained in it. The replication also re-asserted the fact stated in the

plaint, that Rookea Begum was the heiress-at-law of the late Noor Jehan, and that

there was a sufficient legal promise to pay the mortgage debt made by her within

twlve years of the cornmence[3~]-ment of the suit, which appeared in tlie Kubala,

executed by her and the late Furkh-oon-Nissa in favour of the Plaintiff, so as to

e within the exception in the Regulation of liinitatiou ; the Plaintiff

denied that any tender of the mortgage debt had been made t o him by Noor Jehan,

or that she had ever to his knowledge filed any such petition as alleged; and he also

denied that the alleged notice had been served on him, pointing out that the pro-

babilities were all against such a supposition ; and lastly the Plaintiff stated that as

the mortgage money had not been paid, according to rule within the period of

foreclosure, the sale had become absolute, and that the heirs of the origiiial mort-

gagors had not appeared, or made any objections in the foreclosure proceedings in

this suit : and he insisted Ram Rutton Rae was to be considered a stranger to the

proceedings.

By a proceeding of the Principal Sudder Ameen of the Twenty-four Pergunnahs,

the following issues were fixed :-

Pleas in bar of the hearing of the suit. First.

If foreclosure has been affected after the lapse of twelve years from the period fiaed

for repayment of the amount entered in the Plaintiffs alleged deed of conditional

sale, will the law of limitation apply? If the Defendant has been in

possession of the disputed property in right of purchase more than twelve years,

will the law of limitation apply to the Plaintiff’s claim for possession of the

property or not? Thirdly. If in lieu of the Plaintiffs Bye-bil-wuEa o r Kubala, a

335

Secondly.

Vn XOORE IND. APP., 336 PRANNATH ROY CHOWDRY

‘ second deed of sale of the property having been executed, the same (naniely, Rye-

bil-wqffa) has been set aside, can the Plaintiff again [336] on the strength. of the

Bye-bil-wuffa bring the present action or not? The deceased, Noor

Jehan, having put in a petition in Court depositing the amount due to the Plaintiff

under his alleged By~bil-wuffa, and notice thereof having been served on the Plain-

tiff, is the present suit of the Plaintiff, instituted twelve years thereafter, valid or

not? Fifthly. Did the Defendant, Itam Rutton Rae, file his petition relative to the

deposit of the amount due under Plaintiffs Rye-bil-wuffa with or without protest?

If the deposit was niade without protest, is the Plaintiff’s present action valid when

he has refused to receive themoneyl-Issues on the merits. Whether or not

Plaintiff is entitled to possession of the disputed property in virtue of tlie fore-

closure? and was Rookea, Begum the heir of Noor Jehan, and was Furkli-oon Nissa

the heir of Meer Sydoo er not? Second. Is it true as pleaded by the Defendant,

Ram Rutton Rae, that he purchased the disputed property from the deceased, Noor

Jehan? if true, can that circumstance affect the Plaintiff’s claim or not? ” Sub-

sequently, on the petition of the Appellant, an additional issue was added, namely,

x-hether a deposit made by a person not the mortgagor, or his legal representative,

or by an un~nterested third party, such as the Respondent, Ram Rutton Rae, could

be held to be a deposit so as to affect the foreclosure of the mortgage?

Evidence was gone into, but the two Kultalas were not produced or proved by

Ram Rutton Rae. He examined two witnesses, with a view of proving that Rookea

Regurri was not the heiress of Noor Jehan, and that she had died without leaving any

heir ; and also to prove that Noor Jehan, only a few 13371 months before her death,

had gone to the house of the Appellant and offered payment of the mortgage debt.

The hearing of the suit took place on the 12th of May, 1852, and judgment was

then pronounced by the Sudder Ameen. This ~ u d g ~ i e n t was to the effect-Firrt,

that the Regulations of limitation did not apply to the suit, as no rule could be

produced which declared that the petitioii of foreclosure under Reg. XVII. of 1806,

should be filed within twelve years from the date fixed for repayment of the %wit-

gage money ; while section 8 of that regulation rather distinctly ruled that it might

be filed at any period subsequent thereto if the mortgage money had not bem p i d .

Secondly, that even if the rule of I i ~ ~ i t a t i o n was applicable, that there meic with

regard to the present suit several good and sufficient grounds for delay in &ling

the petition of foreclosure, and that the case was brought within the exceptions to

that law. Thirdly, that the foreclosure had not been affected becauae ?ani Iluttxi

Rae htid deposited in Court the whole amount due under the deeds nf conditional

sale within the proper period; and that, although the deposit was made under protcs’,

th:. saiiic? or a n y other objection q a i n s t the mortgage made by him at thc time n o d d

not+ invalidate such deposit, which he prayed niight be paid to the Plaistifi. vho had

refused to accept it, and becaltse he was served with notice of foreclosure, and even

if he had riot been served, that he was competent to deposit the money, and SO

prevent the foreclosure in accordance with a precedent of the Sudder Dewantly

Adawlut, of the 1st of September, 1847. Fourthly, that the Plaintiff’s two Kut-

kubalas became necessarily null and void by the [338] execution of the Kubala

of 27 Maugh, 1247, agreeably to a precedent of the Sudder Dewanny Adawlut, of 28th

of February, 1834. And lastly, that the consideration and decision of the remainltig

issues appeared to the Caurt t o be unnecessary. It was, therefore, ordered that

the suit be dismissed, and that the costs of Ram Rutton Rae, with interest froin tlte

date of judgment, be paid by the Plaintiff.

The Appellant appealed therefrom, so far as related to the points therein

decided against him, to the Sudder Dewanny Adawlut, at Calcutta.

Ram Rutton Rae did not present any cross appeal from the above judgment, iu

respect of the issues therein decided against him.

The hearing of the appeal took place before three of the Judges of the Sudder

Dewanng Adawlut, on the 9th of January, 1854. It was then proposed by the Court

that they should hear and determine in the first instance the two following issues,

involving the consideration of the two several Regulations of limitation, 111. of

1793, sec. 14, and 11. of 1806, sec. 3. First issue--

Whether the enforcement of the

foreclosure and claim of the Plaintiff (the Appellant) was not barred by the law of

limitatioi~, as more than twelve years had elapsed since the date on which the con-

336

Fourthly.

First.

,

21‘. ROOKEA BEGUM [I8591 VI1 XOOBE IND. AE’P., 339

sideration mentioned in the deed of conditional sale was promised to be paid.”

Second issue--*‘ Whether law of l~mitation did not apply to the r ~ a ~ n t i f f ’ s suit, in

caqe i t was proved that Ram Rutton Rae, Defendant, was in possession of the disputed

property from upwards of twelve years.”

An objection to this course was taken by the Counsel of the Appe~lant, who sub-

mitted as the grounds of that objection, that the Court below had [339] decided the

points and issues raised under the law of limitation against the Respondent, Ram

Riitton Rae, and that he had not either appealed against that decision according to

the rule and practiee of that Court, or even filed the ordinary answer to the Appel-

lant’s reasons of appeal, and that the ease came, therefore, before the Court purely

on the points specifically raised by the Appellant.

Two out of the three Judges, Messieurs Dunbar and Colvin (the third Judge,

Mr. Dick, being dissentient), overruled the objection, and directed the issues raised

for the ~espondeI)t, Ram Rutton Rae, and in bar of the suit to be first argued. This

was accordingly done, and with respect to the fir& of two last mentioned issues, two

of the Judges, Messieurs Dick and Dunbar (Mr. Colvin being dissentient,^ decided that

the admission contained in the Kubala executed by Rookea Begum, and the late

Purkh-ooii Nissa, in favour of the Appellant, was such an adniission of the mortgage

debt as was eonte~Ip~ated in sec. 14, Reg. III. of 1793, being coupled with a promise

of paymefit of the same on a contingency which could not be fulfilled, and that this

gave him a right or suit against the alleged heirs of the original mortgagors, and

against any parties in possession of the property mortgaged. On the second issue,

the point of limitation based on Ram Rutton Rse’s alleged ~ndisturbed possession

of upwards of twelve years under Beg. II., 1805, it was held by two of the Judges,

namely, Messieurs Dunbar and Colvin, to co~sti tute an effectual ltar to the sui t ,

and they recorded the following judgment$ E-‘‘ On the second issue of the Respon-

dent, it has been argued that the Respondent is the representative of the mort, ‘Lrat’ors, 13

and that, t~~erefore, the suit [3&] if good against them is equally so against him ;

but he holds by another title than that which the Appellant sets up in this suit, and

in fact t ~ ~ r o u g ~ i o ~ i t the whole course of previous litigation has set up a title opposed

to that of the alleged heirs of the mortgagors. Of this the ~ p ~ e l l a i i t was cognizant,

aud should, if he had any claim against the Respondent, have brought i t within twelve

years from the date of his possession. Therefore, although it has been above ruled

by a majority of the Court that the Appellant is not barred from preferring a

claim on the ground of the original deed of mortgage, yet as the Respondent is an

entirely distinct party, and has held possession under his own adverse title for more

than twelve years, such claim cannot lie either against him, or the land in his pos-

session. We uphold the order of the Principal Sudder Anieen, and dismiss the

The third Judge, Bfr- Dick, dissented froni this judgment, and recorded Iris

opinion as follows :-‘‘ On the second issue of the Respondent, Reg, 11. of 1806, sec.

3, cl. I, is merely a law declaratory of e~ceptiox~s t o the law of limi~atiox~, sec. 14,

Reg. 111. of 1793, and has reference solely to who may be sued. The original lax-

of ~iti~itation, sec. 14, Reg. 111. of 1793, on the contrary, refers solely to wIio way sue,

and prouides that under certain c i r c u m s t a i ~ c ~ a suit may be ~ ~ ~ s t i t u t e d , and will

lie without any exception as to the party to be sued or the property sued for. One

of those circumstaI~ces is, that the complai~ant be able to prove that from good and

sufficient cause he was precluded from sooner obtaining redress. In this case the

Appellant has shown that the Respondent’s ostensible possession dates f roni the

Magistrate’s Order of 1831, and that from 1832 to 1847 a suit was E3411 pending

in the Courts of Justice ~e tween the heirs of his ~ o r t g a g o r and the Respondei~t, Ram

Rutton Rae, the party in possession of the property pledged to him. In 1849, he

insti~uted this suit against both those ~ ~ t ~ g a n t s : I hold, therefore, that he vas

~ u s ~ ~ f i e d in not suing wfiile that suit was p ~ n ~ ~ n g between the very parties whom he

would have sued. He did enough by presenting a petition that his claim might

not be prejudiced by any decree passed therein. A suit by him in the interim mould

have been s u p e r ~ ~ o u s and litigious, as against the heirs of his mortgagor, who

admitted his right; and nugatory as against Ram Rutton Rae, the party in you-

session, for no decision could have been passed until the final decision in the pending

suit between those pnrtiee. Thus E think Appellant has shown such good and

337

appeal with costs.”

sufficient cause for his deiay, as was contemplated in sec. 14, Reg. HI. of 1193, and

enough to satisfy the require~ients of juRtice.”

The decree of the Sudder Dewanny Adawlut, founded on the judgment of the

majority of the Court, ordered that the appeal be dismissed with costs.

The preseiit appeal was from this decree.

Mr. R. Palrner, Q.C., and Mr. Leith, for the Appellant.-First. This case is on all

fours with Rajbh Enayet Noosseim v. Sa& Ahlrnrd Resa (ante [7 Moo. Ind. App.],

p. 238), the facts of which are similar. We submit, upon that authority, that the

suit was not barred under Ben. Reg. 11. of 1805, sec. 3, by the alleged twelve year’s

undisturbed possession of Ram Button Rae, as the possession relied [a] upon by

the Sudder Court was not undisturbed, but was all along contested and the title on

which it ’was founded the subject of continued litigat~on, Ram Button Rae v. Fzri-

~ ~ ~ ~ 0 ~ ~ ~ ~ s ~ (4 Moore’s Ind. App. Cases, 233). This litigation began in a suit

in the Zillah Court, and concluded by a decree of Her Majesty in Council ; it invoived

the question of title to the whole of the land and premises claimed by the Appellant

under the deeds of cond~t iona~ sale, and prevented him from proceeding under the

deeds for foreclosure and possession, the litigants being, on the one hand, the heirs

of the parties who made and executed these deeds, suing as Plaintiffs, and on the

other part, the Respondei~t, Ram Rutton Rae, who was ~efeRdant, being then in

possession under sumniar~ Order of the Magistrates, made under Ben. Reg. XV. of

1824, in ronsequence of the quarrels which had taken place on the death of the

survivor of the parties who executed these deeds, Ram Rutton Rae, the Defendant

in that suit, claimed title directly from the survivor under deeds of sale made sub-

sequently to the date of the deeds of eondi~ional sale in question. While that’ suit

was pending, the Appellant intervened as a third party to protect his rights a8

mortgagee. His rights were, however, not adjudicated upon in that suit, but his

right to sue was reserved to him by each of the decrees pronounced therein, i n c ~ ~ d i n ~

the judgment of the Privy Council. This latter decree decided against the deed of

gift set up by the Plaintiffs in that suit, but did not determine the validity of the

alleged deeds set up by the Respondeiit, lZarti Rutton Rae. It was ui~necessa~y to

da so, a3 the Plaintiffs had failed in proving their title. It f3433 was espressly

declared by Lord Broughani in giving judgment, that the deGision was enrirely

~ ~ , i t ~ i o u t ~ ~ ~ e ~ u d i c e to any question as to the Yalidity of these deeds, and any persons

claiiiiing under Xoor Jehan, deceased, who was one of the parties who had executed

the two deeds in favour of the Appellant (4 Moore’s Ind. App. Cases, 263). Thvre ii,

no rule of law which creates an absolute possessory title on a twelve years’ UTI-

disturbed possession, even if there had been such. But here the possession was not

~ I n d i s t L ~ ~ ~ ~ e d , but was tlie subject of continued litigation. The Appellant has brought

himself within the exception provided by sec. 14 of Ben. Reg. 111. of 1793, bp

proving the fotmer s u i t and continued litigation from 1832 to 1897.

Secondly. The deposit made by Barn Rutton h e under the foreclosure proceed-

iiigs, was no tender in law ; as in the first place it was not absolute but restricted,

and rendered nugatory by the protest which accompanied it, namely, that that Re-

spondent would ~n~ined~ate ly bring an action against the Appellant to recover the

same if accepted and taken out of Court by him. But, further, the terms of the

equitable provision containing in Ben. Reg. XVII. of IS06 extending the period of

redenrption beyond the actual time agreed to between the parties for the cond~tioIla1

sale becoming absolute, expressly confined the benefit thereof to the ~ o r t ~ a g o r , or

owner, and his representatives. Ram Button Bae having failed to bring himself

within these terms ought, therefore, to have been considered and treated as a mere

stranger, and, as such, not entitled to make a deposit to prevent foreclosure,

~0~~~~ Lnl Y. ~ ~ a ~ a r a 3 a ~ L ~ ~ ~ u n b e r Si@ (3 Ben. Sud. Dew. Reps. 54). The mort-

gagor or h i s heirs only can sue the mortgagee [%PI] for an account and redemption,

TV’hite v. Parrither (I Knapp’s P.C. Cases, 229), ~~0~~~~~~ v. Biezkes (6 Yes. 572),

~~~~0~~ v. ~ a ~ ~ e ~ s b ~ (2 H.L, Cases, 388). The ZiIlah Court ought, therefore, to

have decreed for the Appellant, and not in favour of Warn Rutton Rae. That Court

held that the Regulations of limitation did not bar the suit, as under Ben Rcg.

XVII, of 1806, sec. 8, a petition for foredosure might be filed after twelve years, if

the i~or tgage money had not been paid or duly tendered. The deeds of c o n d ~ t i o ~ ~ a l

sale of the Appellant were not affected by the subsequent deed of sale by the Respond-

338

‘U. ROOKEA REGUM [ 18591 VI1 MOORE IND. APP., 346

ents, Rookea Begum and Furkh-oon Nissa, nor could they operate to prevent him

from pursuing his remedy to enforce his rights.

Thirdly. The decree appealed from is wrong, as the Sudder Court ought not,

l)y the practice of that Court, to have entertained the questipn of limitation, decided

by the Zillah Court in the Appellant’s favour, when the decree upon that issue was

not appealed from by Ram Rutton Rae.

Mr. Forsyth, Q.C., and Mr. W. Field, for the Respondent, Ram Rutton Rae.-

lipon the first point we submit that the Appellant’s suit was barred by Ben. Regs.

111. of 1793, sec. 14, and 11. of 1805, sec. 3, which prevented him from proceeding to

foreclose the parties entitled tp redeem, the cause of action having arisen twelve

years before any suit had been commenced. The expiration of the term of payment

of the mortgage debt was cause of action under Ben. Rep. 111. of 1793. sec. 14.

Macpherson On mortgages, pp. 13, 31, 186. The [345] only

ground relied upon by the Appellant to take the case out of the operation of that

hection is that there was a good and sufficient cause, by reason of the pending suit

respecting the title of the heirship to the mortgaged property, and that the Appellant

was precluded by the fraudulent deeds set up by certain parties. That suit, however,

did not afford the means of ascertaining who were Noor Jelian’s heirs. Ram Rutton

Rae has had undisturbed possession for upwards of twelve years under a hona fide

title. subject, i t is true, to an equity to pay off the mortgage, and unless fraud he

established such possession under Ben. Reg. 11. of 1806, is a bar to the suit, Hurrer

Shah v. Tootum-ool Ruheem (a). Macpherson On civil procedure, p. 76 (Edit. 1850).

The question of fraud is not pleaded or put in issue.-[Lord Kingsdown: The

second ibsue on the merits, raises the question of purchase. Does not

that put the question of fraud in issue?]-The deeds of purchase were

produced in the original suit.-[Sir Lawrence Peel: You say you pur-

chased subject to the mortgage; is it not a question of fact whether you gave a full

coiisideration?]-Ram Rutton Rae was not in possession as trustee ; we discarded the

trusteeship. There was an equity to pay off the mortgage, and he came in and

offered to pay the money. Rajah Eimyet Hoosseim v. Suyud Ahmed Reza (ante 17

Moo. Ind. App.], p. 235) is no authority and does not apply in this appeal. There

the suit m m supplementary to a former decree, which distinguishes it from the

present case.

[346] The next point is the effect of the folreclosure on the suit, which the Appel-

lant instituted for possession; for this is not a suit for foreclosure, but a suit fo r

possession only, Macpherson On civil procedure, p. 38: i t must be assumed that a

foreclosure had been obtained. Ben. Reg. I. of 1798, sec. 1, was passed to prevent

frauds on the par t of mortgagees evading the receipt of the mortgage debt, to get

possession of the mortgaged premises. Ben. Reg. XVII. of 1806, secs. 7 and 8,

point out the course of proceedings to be pursued by the mortgagee, under a Bye-

Lil-wffa like the present, when desirous of foreclosing the mortgage and making the

Conditional sale absolute. Section 8 enacts that the mortgagee is first to demand

paynient from the mortgagor, or his representative and to apply to the Judge of the

Zillah where the property is situate, who is to cause the mortgagor or his repre-

sentative to be served with a notice that if he does not redeem within a specified

time the mortgage will be finally foreclosed, and the conditional sale become absolute.

Under this head two principal objections arise as to the regularity of the proceed-

ings, both of which we submit are fatal. First, the heirs of Noor Jehan have not

been served. The Respondents, Rookea Begum, Syud Aman Ally, or Ram Rutton

Rae, are not her heirs’, neither has it been shown who are her

heirs. The heirs not having been served with notice, the whole pro-

ceedings under the foreclosure are void by this latter Regulation. Secondly, the

tender and payment into Court of the mortgage money in the circumstances was

sufficient. The aqument‘of the Appellant that the tender was not good, as it was

clogged with restrictions, cannot prevail. Manning v. h n ? z , ( 2 Carr. and Kir. 13)

This precedent

n as filed in the Court below. In that case, the Sudder Court held, that as more thall

twelve years had elapsed from the date of the expiration of the period of the mort-

gage, to the date of the issue of the notice of foreclosure, the Plaintiff was barred

by the Regulations of limitation.

339

Elberling, sec. 446.

-___. _ _ _ _ _ _ . ~ ~ _____ ~ - ~

( a ) Heard by the Sudder Dewanny Adawlut, 24th Dec. 1550.

VI1 MOORE IND. UP., 341 PRANNATK ROY CHOWDRY

i s an authority to show that [%7] where a tender of money was made under protest,

yet it is a good tender.-[Sir John Coleridge : That case is inapplicable ; here is a

threat that if the Appe~lant akes the money he is to be subject to a suit. If he had

taken the money the Appellant would have admitted the sale to Ram Rutton Itae to

be good.]-Another objection of the Appellant is, that Ram Rutton Rae, being a

stranger, he could not make the tender and deposit in Court of the mortgage money.

He was no stranger j he was a purchaser of the whole interest of the mortgagor, and

clearly was entitled to deposit the money in Court. Rut on this ground the Appellant

is estopped by the service of the notification under the Ben. Reg. XVII. of 1806, sees.

7 and 8, upon Itam Rutton Rae to pay the m o r t g a ~ ~ ~ o n e y .

Lastly, the Appellant having brought the whole cause before the Sudder Court,

Ram Rutton b e , with the decision of the Zillah Court in his favour, was iiot bound

to bring a cross appeal from the decision of that Court upon the issue of limitation.

The practice of the Sudder Court upon appeal is to entertain the whoIe cause, aud not

to require a crws appeal.

Mr. It. Palmer, Q.C., in reply.

Judgi~ieiit m s reserved, and iiow delivered by

The Right Hon. Lord Kingsdown (July 2’7, 1859).-This is an appeal froin a

decision of the Sudder Dewanny Adawlut, at Calcutta, in favour of the Itespond~I~t,

a Defendant in a suit wherein Prannath Roy Chowdry was the Plaintiff, and Rookea

Uegum, heiress of Noor Jehan, Syed Anian Ally, and Ram Rutton Rae were the

Defendants.

E3483 The suit, originally iyistituted in the Court of the Principal Sudder Bmeeii

of the Twenty-four Pergunnahs, and thence transferred to the Civil Court there,

was ~ r o u g h t o recover possession of a house and lands, under a fore~losure of a

mortgage of the same to the Plaintiff executed by Noor Jehan and her husband,

Meer Sydoo. The property mortgaged belonged to the wife alone. The title of the

n i o r t ~ a ~ o r , Noor Jehan, to the property which was the subject of the suit, was un-

disputed in this cause. The mortgage, which was o€ the class termed Bye-bil-wuffa,

or ~ u ~ - ~ u ~ a l a , w s effected by a deed of conditiona~ sale for S. Its. 4001, with n

further charge, under a second deed of the same nature, for S. Rs. 1000. The first

deed bore date 11th Cheyt, 1231, and the second was dated 23rd Bysack, 1232.

The ~ l a ~ r ~ ~ i f f contended that a fore~losure of the title to redeem had duly taken

place, and on that foreclosure he sued for possession to perfect in himself the pro-

prietary right to the lands free from redeniption. Ram Rutton Rae was the only one

of the Defendants who disputed the olaini. He contended, amongst other things, that

the claim to possession of the lands was barred by l i ~ i t a t i o n of suit, and the right

to foreclose defeated by a due deposit of the mortgage money under the ~ e g u l a t i ~ n ~

~e re i I~a f t e r referred to. The Plaintiff had, as the Respondent contei~ded, wrongly

refused to accept the money, and was, therefore, not entitled to foreclosure. Be

further contended that, by a deed of sale from the representatives of the mortgagor,

the Plain~iff’s two Kut-kubal~, or deeds of n i o r ~ a ~ e , had been rendered void.

[349] The first, second, and third points to be determined were stated by the

Judge as follows : as on the remaining points, three in number, he passed on decision,

it is unnecessary to state them.

“Fi rs t point, whether or not limitation can apply, if the foreclosure has been

eEected after the lapse of twelve years from the period fixed for r e p a y ~ e n t of the

aniount of P~aintiff’s alleged deed of conditional sale.

‘I Second, whether the foreclosure in question has taken place in due course or

not ; whether in the foreclosure case, the amount due under the conditional deed of

sale, was paid hy the Defendant, under protest or not ; and whether the ~ e f e n d a ~ ~ t

had any right to deposit the said amount or not.

Third, when another deed of sale, referring to the two deeds of ~ ~ n d i t i o n a ~

sale, and in ’lieu of the amounts specified therein has been executed, which deed o f

sale has been set aside as invalid by the Court, then has Plaintiff or has he not again

a right to sue under those two conditiona~ deeds of sale? ’’

The Judge of the Civil Court of the Twenty-four Pergunnahs decided the first

issue in favour of the Plaintiff, the Appellant; the second and third issues he

decided in favour of the Resp~ndent; and the r e ~ n a ~ ~ i n g ssues he judged it un-

340

W. ROOKEA BEGUM [lS59] VII MOORE IND. APP., 9 ~ )

necessary to decide, in consequence of his decision on the second and third issues

in the Respondent’s favour. He dismissed the Plaintips suit, with costs.

On appeal by the Plaintiff from that decision to the Sudder Dewanny Adawlut,

that Court, not unanimously, however, reversed the finding on the first issue, and in

effect decided that the Plaintiffs suit was barred by limitation.

[350] The Defendant, Ram Rutton Rae, had not appealed from the decision of

the lower Court on the issue as to the limitation of the suit; and it was contended

before their Lordships that the appeal Court had not authority to reverse the

decision of the Court below on that issue; but their Lordships think that the appeal

of the Plaintiff brought the whole cause before the Sudder Dewanny Adawlut, and

that Ram Rutton Rae, who had the decision in his favour, was not bound to appeal

from a finding unfavourable to him on a single issue.

The instrument of conditional sale in this case was described as one of mort-

gage on the face of the instrument itself. It was in the ordinary form of a Bye-bil-

aruffa or Kut-kubala. It Contained a stipulation against a sale or mortgage to any

body else by the mortgagor, and fixed, for payment of the money, a time certain,

on the day after which, if the property were not redeemed, the sale of the lands was

to become absolute. As this time had elapsed more than twelve years before the

institution of the foreclosure proceeding, it was contended, on behalf of the Respond-

ent, that the claim was barred under the rules of limitation contained in Ben. Reg.

111. of 1793, sec. 14, and Ben. Reg. 11. of 1805, sec. 3, and the Court of appeal, re-

versing on this point the ruling of the Court below, so decided.

After the execution of the mortgage, the niortgagor, Noor Jehan, under an

instrument in writing, appointed the Defendant, Ram Rutton Rae, her attorney,

to manage her affairs, and put him, as such, into possession of the property in

question for herself. She thereby agreed to pay him a considerable sum for his re-

muneration for such service ; he was to pay E3511 certain debts which the instrument

recites, including the Appellant’s mortgage, which is expressly referred to and

acknowledged therein, and an option was given to the Defendant to purchase the

property, if he should be so minded.

In the

former litigation hereinafter referred to he wext into proof on this point, but he

has not proved that purchase in this suit.

The sixth issue related to that transaction.

After the death of the mortgagor, disputes arose as to the property, and the

Defendant, Ram Rutton Rae, was continued in possession under an order of the

Magistrate, in a Foujdary proceeding for quieting the possession, who left the

parties to proceed by regular suit for the decision of their rights.

A long litigation ensued between certain parties claiming the lands under an

alleged gift from the husband of the mortgagor, Beebee Jehan, and claiming also

by heirship ; and Ram Rutton Rae, who claimed under the alleged sale to him by

Beebee Noor Jehan. In that suit the Appellant intervened, according to the practice

of the Mofussil Courts, for the protection of his interests. He went into evidence to

prove his mortgage title; and the decrees which were made, from time to time, in

the Courts in India in the progress of this litigation were expressed to be without

prejudice to his claims as mortgagee.

The effect of this intervention on the question as to the limitation of his title

to foreclose, and to acquire possession of the property pledged to him, will be sub-

sequently considered.

Finallr, by a decision in the Privy Council, the suit [352] of those Plaintiffs

against Itam Rutton Rae (see 4 Moore’s Ind. App. Cases, 233), was dismissed. The

decision in the Privy Council was made without prejudice to the right of any person

clainiing under Noor Jehan, and on the meaning of that reservation, and as to its

effect on the alleged title of the Defendant, Rani Rutton Rae, under the sale wliich

he had set up, some discussion took place in the progress of the arguments in this

case. Their Lordships deem it unnecessary to express any opinion on that point,

which i s not necessary to the decision of this appeal.

The questions to be considered are, whether the Appellant, the mortgagee, was

barred by limitation of time from proceedings to foreclose the pkrties entitled to

redeem him ; and if he were not so barred, whether he proceeded so as to forecIose

341

The Defendant alleges that he purchased the property accordingly.

VI1 MOORE IND. APS., $63

such parties; and iastly, the effect. of such foreclosure on the suit which he instituted

for possession. By 1~egulatioIi 111, of 1’793, a suit is barred where

the cause of

action shall have arisen twelve years before any suit shall have been commenced on

account of it ; unless the ~OnipIa~xiaIit can siiow, by clear and positive proof, that he

had den~ar~ded the aioney or matter in question, and that the Defendarlt had admitted

the truth of the demand, or promise to pay the money; or that Ire directly F e -

ferred his claim within that period for the iizatters in dispute, to ti Court of COID-

petent jurisdiction to try the demand, arid shall assign satisfactory reasons to the

Court why he did not proceed in the suit, or shall prove that either froni minority

"

or other good and suificient cause, he had been p r ~ l u d e d from obtaining redress."

In considering the effect of a legis~ative bar on the [%3] srrit of tk ~ ’ ~ a ~ n t ~ ~ ,

created as it is here by general worda, it is often important to regard the nature and

object of the suit; the nature of the title to which the bar is set up; who the parties

are who raise the objection, and a ~ a i n s t ~ whom it is raised. The bar from twelve

years’ possession under that Regulation does not depend simply on the length of

possession, it may exist in favour of one occupant and not of anotliel*; i t may be

powerful against one demand, or one sort- of claim, and be, at^ the same time, in-

operative as against others. The time may ruix from a date prior or ~ ~ b s e ~ u e n ~

to the ~ l a i n ~ i ~ ’ ~ title to possession. A

cause of action ’) is not prolon~ed by mere

transfer of the title. It cannot be laid down, therefore, as a rule u~~iversaliy true,

that under the Regulation 111. of 1793, section 14, a mortgage0’s proceedii~g for a

foreclosure under a mortgage, of the class of Bye-bil-wuffa simply, cannot be pre-

ferred after twelve years from the expiration of the time which the instrument fixer

as the period of redemption by payment, and on the expiration of which the COB-

ditional sale will become absolute, for this indiscriminating ground of decision would

indude alike adverse occupations) and those which had not the semblance eyeu of such

a character, and would establish. a bar arising from simple occupation, and not from

the laches of the ~ e m a ~ d a I i t or of others before him. The contention, on the part of

the Respondent, indeed, was not pushed to that extent, and i t was conceded that a

possession c o n t i I ~ ~ i i n ~ u der and in privity with and with a c k n o ~ ~ e d ~ m e n t of the

~ la in~ant ’s title, would not operate us a bar; as, for instance, in the case of a trust,

and the ordinary possession of a cestui que trust, or trustee under it. These iiistru-

nients of coiidi-r35~]-t~ona~ sale have now an ope ra t io~ different from that, which

they originally had. They are mortgagors now, redeeniable like ordinary mortgages,

and subject to foreclosure. There is some danger of falling into error in decisions

as to the liniitatiori of suits founded on them, if their old, rather than their present,

character be regarded. As long as the transaction was one of sale, conditional at

first, and absolute a t a certain period aft0rwards by lapse of time, unless, on the

prior performance of a certain condition, the title to the land was on that condition

t e ~ ~ ~ ~ i n ~ t i n ~ In favour of the c o ~ d i t i o n a ~ purch~ser, the same as that of any ordinnrg

"

oxner, arid a possession p&ma fucie irreconcileable with it, might well be deenicd"

adverse from the date of the eonipletion, of the perfect. title in the buyer.

But if the transaction be viewed as i t should new be regarded under the Regula-

tions, as one of mortgage, redeemable a t any time by &he mortgagor, or those claim-

ing under him in privity with his title as mor t~agor ;then, as no difference between

the laM- prevalent in India and the law prevalent here as to the relation between

niortga.gor and n ~ o r t ~ a g e e on this poii t has been suggested to their ~ordships) the

possession of those who claim under the mortgagor, so long as tshey assert a title

to redeem, and a ~ v a ~ ~ c ~ no other title inconsistent with it, must, prima fucie at least,

be treated as perfectly reconcileable with, and not adverse to, the title of the mort-

gagee, and the continuation of his lien on the thing pledged. It is by no means

the essence of such a title, there, any more than it is here, that it should be accom-

panied by an actual continuing possession of the Iands. The pledgee may, from

various causes, be reluctant to [355] assume possession of the pledge, or to shorten

the period of its redeemable quality.

In addition to this, it i s to be observed that, as under the Regulatio~~s an adverse

title must also be a

neither mortgagor nor mortgagee can, in ordinary cases, be unconscious of tile

~ ~ n d i t ~ o n a l nature of their own titles, there is no ground for p r e ~ u r n ~ ~ ~ cenerally

between the immediate parties an adverge title from mere length of prisse

342

~ R ~ ~ ~ A ~ ~ BOY UHOWJJRT

fide title, under the shorter period of l i~ni ta t~on ; and

V. ROOKEA. BEGUX 1118593 VI1 XOOEE XND. APP., 836

Where a ~ ~ l o r t ~ a ~ e i s subj ct by law tu be f o r ~ l o s e d ~ the title to foreclose i s iu t h

nature of a limit to the title to redeem. It by no means follows, as a consequence,

that the mor t~agee foreclosing will be able, in a suit for possession, tu make good

~ ~ ~ a i ~ ~ s t ll occupants a titIe to possession. Foreclosure is a step towards illat object,

under the law relat~ng to these securities, where the object is to obtain a proprietary

right ; but in the mortgagee's suit for possession, consequent on the foreclosure notice,

the ~ ' l a i ~ ~ t i f f may, according to the character of the ~ e f e l ~ ~ a n t , be met and defeated

by proof of a prior, or of a superior, title; or by proof oE warit of title in himself,

or that he has not perfected his title to possession. But such defences are not uperr

alike to all Defendants, and between mortgagee and mortgagor some of them would

be i n a d ~ i s s ~ b ~ e .

Their Lordships can find in this case no evidence, and nothing to suppork an

inference, that the once undoubted right of the mortgagee to force possession waa

tit an end, or barred, or incomplete. His intervention in the litigation before aIIuded

tu, his proofs and proceed~n~5 in that l i t igat~o~i, the decrees in relation to h i s title,

"

the objection to it by Earn [3:356] Rutton Rae, on the untenable ground that his mort-"

gage title was merged, as it were, in a condit~ona1 purchase which never took effect,

afford the s t r o n ~ s t proof that no payment or other act had extinguished his lien

on the lands hypotheca~ed to him. The ~ e f ~ n d a ~ t , Rani Button Rae, if he ~ c a ~ ~ ~ e

n p ~ ~ c h a s e ~ , us he has alleged, took with notice of the mortgagee's title which in terms

forbade any subse~uent sale.

A mitigation of this restrictive condition appears to have been establislied by a

series of decisions in the Company's Courts, which limit it to sales or mortgages,

not made subject to the prior m o ~ g a g e ; so that, in the view most favourable to the

~ e f e i ~ d a ~ ~ t , the csse stands thus : if his could be considered a b o m fide possession a t

all, i t must be taken to have been a possession originally not, adverse to, but consistent

with, the niortgage title. If such were its character, there is n o t h ~ n ~ whatever to

show that its beclanbe adverse a t any time before twelve years preceding tlie i~~s t i t u t io i~

of the Appe~lant's foreclosure suit. The ~ ~ t i ~ a t i o ~ ~ before referred to vas consistent

with the recognition by both parties of the title of the nwrtgagee, who intervened

in that suit. It i s stated by oneof the *Judges that both parties admitted the ~nortgage

title. ~ ~ l ~ e t h e r t is was so o r not their ~~ordsh ips have not in this suit the means

before them of judging ; but they find, c e ~ t ~ i i ~ ~ y , 110 proof of a r ~ p u d ~ a t i o ~ ~ by Ram

Rutto~i Rae of tlie mortgage title at any period twelve years before the iiist~tL~t~on of

the foreclosure p r ~ c e e d ~ i ~ g and the ~ ~ o t i ~ c a t ~ u n under it. Bad such a r e ~ ~ u d i a t ~ o n

appeared, such repudiation, whilst it would have established from its date the com-

rnencemeiit of adverse possession, would, a t the same time, under the circumstances

of E3671 this pa~ticular case, have e s t a b ~ ~ s ~ ~ e d , in the opinion of their ~ ~ o r d s ~ ~ i p s ,

from the same date, an absence of bona fides in Ram Rutton Rae as to the m o r t ~ a g e ~ ' ~

title ; eonsei~uent~y their Lordships, in any way of viewing the ~ u e s ~ i o n , are unable

to concur in opinion with the majority of the Judges in the Sudder Court that the

claim w&s barred by lixn~ta~ion as to time.

The intervention of the Appellant in the suit, his proceedings in it, the recogni-

tion of his title in the decrees, all serve to show that the Appellant was not sleeping

upon hisclaims, and that he was deterred from enforcing them in a distinct suit

of h i s own only by the circumstarIces of that litigation. He was certainlv not pre-

cluded by any physical or legal i n ~ ~ e d ~ ~ e i ~ t from the institution of i b suit : but, as one

of the ~ ~ ~ i ~ a n t parties ad i~~i t tcd his title; as the right of the Respondent was

still sub j d i r e ; as the title to redeem could be butz in one of these parties; as he

had been allowed to intervene and was a c o n t ~ n u i n ~ party in that suit,

their Lordships think that it would be an inconsistent course in the Courts

to linld that he had h e n guilty of laches, a i d that the pendency of such a l i t i~ation,

with the ~ r o c e e d i n ~ in it, furnished no " good and sufficient cause " for his not

proceeding with his own cIaim in a dist~nct suit, a step which would have irkcreased

the cost of litigation to the parties who were Qnly emtesting imter se for the title,

which gave the right to redeem, The case, in this point of view, falls in with the

principle of that lately decided in the Privy Council, Rajah Emye t $fossein v. 8ay .d

~ ~ ~ 7 e ~ Rem (am%, [? Moo. Ind. App.] p. 238).

The question remaining to be considered i s , whether the foreclosure proceedings

were regular. The ~or tgagee , under thin form of mortgage, unless he be put [35$1

343

into possession of his pledge by the act of the mortgagor, must, according to the law

prevalent in the Courts of the East India Company, under the Regulations~ seek the

assistance of a Court to give him pomession of his pledge. N-hen his object is also

to foreclose &e mortgage, he must eEect that object in the inode prescribed by

Regulation 111, of 1795, sec. 14 ; Regulation fI, of 1805, sec. 3 ; and Regulation XVIX.

of 1806, secs. 7 and 8.

If this mode be not followed, the foreclosure will not be regular, and the mort-

gagee’s title to possession will not be complete.

The objections which were raised a t the Bar to this proceeding were, t.hat the heir

of the mortgagor was not duly served, and that the m o r ~ a g e ~ had refused a valid

tender of the money due to him under his mortgage.

With respect to the first objection, it appears to their Lordships, upon the evi-

dence, to be su~c jen t ly established for the purposes of this cause that Rookea Begum,

upon whom the notice was served, was the heir of Noor Jehan.

The rei~iaining objection relates to the payment into Court, in the nature of a

tender, which was made by the Defendant, Ram Rutton Rae. Ram Rutton Rae

directed the money to be paid out to the Appellant; but, a t the same time in his

petitio^ to the Court, he disputed the validity of the Appellant’s title to foreclose,

and expressed an intention, am~un t ing to a notice, to sue the Appellant to recover

back the very money which he wits tendering.

"

The m Q a ~ ~ i n g of the direction that the money may be paid into Court clearly is,"

that the mortgagor ninp have adequate and lasting evidence of that which i s E3691

put in plaoe of a tender, and the mortgagee the security and advantage of a deposit

in acknowledgement of the title.

The n~ortgagee would have little ~I~ducement to take the money, waiving his lien

by its acceptance, ii litigation on the very same subject were to r~ommence upon his

acceptance of the money; and though mere words in the form of a protest, which may

accompany a tender, will not defeat it, where they can reasonably be regarded as idle

words, their Lordships think that the proceedings of Ram Rutton Rae with respect

"

to the ~~ortgagee’s title to foreclose forbid such an interpretat~on of his language"

and his act. But independently of this objection to the payment, another and a

graver reason exists for holding it to be not such a payment. its the R e ~ l a t i o n s con-

template.

The tikle of Ram Rutton Rae to redeem was neither proved nor adniitted. k

grave suspicion rest,ed on his alleged purchase, which the litigation, so f a r from

dispelling, had increased. Had the mortgagee accepted his money, he would have

"

admitted a title to redeem in which he was not bound to acquiesce; and as that title"

has not been proved in this case, the refusal must be viewed now in the same light aii

i f thernoney had been tendered by one who had no title to redeem thd mortgage,

and who ,did not offer it with due consent, in the name of the heir of the mortgagor.

Their ~ o i - d s ~ p s think that the service of the notice on Ram Rutton Rae raised no

case of estoppel. The mortgagee cannot tell the exact nature of an occupant’s title

in all eases, nor how far he may be entitled, with the mortgagor’s consent, ts tender

in his name. It i s best to have a general rule, and ser - [3~]-~ice on the occupant i s

calculated to preveiit errors. Consequently, their Lordships think that the objections

to the foreclosure fail.

Had the course of proceeding in the C o u d below a a n l i t ~ d of a ~ u d g ~ e n t for

the mort~a~e-money, with interest and costs, on a suit for possession of the property

pledged to secure it, their Lordships would hme 60 limited their decision on this

appeal. As the decision in this proceeding i w not final, it will not affect any right

to redeem to which the heirs of Noor Jehan may be entitled, upon which their Lord-

ships forbear from offering any opinion.

Their Lordships will reconimend to Ber Majesty to reverse the decision wliich has

been given, and to direct judgment to be given for the Plaintiff, with his costs below,

and the costs of this appeal.

344