Candy, C.J (Acting):— The only question before us relates to limitation. Plaintiff, who had been the mistress of defendant, alleged that on 21st December, 1889, she had executed to him a registered mortgage-bond purporting to mortgage her property for Rs. 1,000; but the same was a sham transaction, no consideration or possession having passed. She remained in possession till 1835, when defendant wrongfully took possession of the two fields which were part of the property included in the mortgage-bond. Hence this suit to recover possession of the two fields, and for a declaration bat the mortgage-bond was void The defence was that the mortgage was a real transaction accompanied with consideration and change of possession.
The Subordinate Judge in the Court of first instance found on the question of limitation, following the decision in the case of Ikram Singh v. Inlizam ali that the limitation of twelve years was applicable; and on the merits he decided in favour of the plaintiff.
On appeal to the District Court the Subordinate Judge, A.P, summaril disposed of the case on the point of limitation, holding that the question before him was concluded by the Privy Council ruling in Junki Kunwur v. Ajit Singh(2) He, therefore, held that the suit was barred under article 91 of the Limitation Act: also that it was barred as not being brought within three years from the date of the Mamlatddr's decree. A copy of this decree of the Mamlatdar was produced for the first time in the lower Appellate Court; and there has been no examination of the parties regarding the circumstances relating to that decree It is dated July, 1892, and purports to be given in a possessory suit filed by the present defendant against the present plaintiff and certain tenants. A copy of the present plaintiff's deposition in that suit was also filed in the Court of first instance; but it is impossible from the record, as it now is, to say whether that was a bond fide suit for possession, or whether the then plaintiff as the registered mortgagee was merely the then first defendant's nominee in order to eject the tenants.
With regard to article 1 of the Limitation Act, it is clear that the Subordinate Judge, A.P, was mistaken in simply relying on the Privy Council case quoted by him. That was a case in which the executant of the deed in question, which had been acted on from the date of execution, sued to obtain a cancellation of the same and to recover possession of the properties. That is different from the present case, in which it is alleged that the mortgage deed was not acted on, but that the plaintiff remained in possession of the property till 1895. There is no finding on this allegation of possession, and so it is impossible for us to come to a definite conclusion on the question of limitation. It is obvious that if plaintiff's allegations are correct, then a period of limitation of three years cannot run from the date of the execution of the document. Otherwise it would always be open to a sham mortgagee or vendee to wait for three years from the date of the execution of the document, and then with impunity he could seize the property, and the real owner of the property would be helpless (cf) the remarks of Muttusami Ayyar, J., in Sundaram v. Sithamma. Admitting that the plaintiff seeking to recover possession against an instrument executed by herself must first obtain the cancellation of the instrument, and that the three years' limitation enacted by article 91 applies, the period cannot be calculated from the date of the bond. But we are not in possession of the facts; and the Judge in the lower Appellate Court made no attempt to ascertain the facts. We must, therefore, reverse his decision and remand the appeal for a fresh decision. If necessary, the lower Appellate Court will call or further evidence. Costs to abide the result.
Case remanded.