Edge, C.J:— This was a suit for redemption of mortgage. The original mortgage was a usufructuary mortgage of 1822. One of the mortgagors redeemed the whole of the property in 1828. This suit was brought against his heirs on the 5th February, 1886. The lower appellate Court dismissed the suit on the ground, that it was barred by limitation. In my opinion the limitation applicable in a case of this kind is the limitation which would have been applicable if the original mortgagee of his heirs had been the defendants to the redemption suit, that is, if art. 148 of the Limitation Act applies, the period does not run from the date of the redemption of the whole property by one of the co-mortgagors, but from the time it would have run against the original mortgagee if he had been a defendant in the suit. As I understand the law, when one of two or more co-mortgagors redeems the whole, he as to the portion which represents the interest of his co-mortgagors stands in the shoes of the mortgagee from whom he redeems and standing in those shoes, it appears to me that he has got the same rights and the same liabilities. If art. 148 applies, as I think it does, this suit is barred by time. If the ruling of the Full Bench in the case of Umr-un-nissa v. Muhammad Yar Khan be correct and exhaustive, then also the suit is barred, as more than twelve years have run since the date of the redemption of the mortgage by the ancestor of defendants. So in either case the plaintiff's suit must fail. The ruling of the Full Bench above referred to was explained by my brother Straight and my brother Tyrrell in the case of Nura Bibi v. Jagat Narain . It appears from that explanation that the attention of the Full Bench was not drawn as to the question whether art. 148 of the Limitation Act was applicable to the case. There the attention of the Full Bench having been confined to the article before them, the result arrived at was that art. 144 was held applicable. This appeal therefore must be dismissed.
Straight, J.:— The facts out of which the question raised by this reference arose are very fully stated in the referring order of my brother Mahmood and it is wholly unnecessary to repeat them now. The learned Chief Justice has summarised the position of the parties to the litigation out of which this appeal arose, by saying that this is a suit by the plaintiffs, appellants, before us, for redemption of their share of certain property mortgaged in the year 1822, from the defendants respondents who are the representatives of one of the original mortgagors, who in the year 1828 redeemed the whole of the mortgaged property. The three questions raised by my brother Mahmood in his referring order are:—
(1) Is this suit governed by art. 148 or art. 144 of the Limitation Act?
(2) If by art. 148, is the starting point of the period of limitation the date of the mortgage of 1822, or the date of the redemption of 1828?
(3) If art. 144 applies, is the defendants' possession acquired under the redemption of 1828, to be taken as adverse to the plaintiffs from that date?
It will be convenient for me at once to deal with the obvious matter that was passing through the and of my brother Mahmood at the time be made the reference of these questions, with regard to the applicability of art. 144 to facts like those disclosed here. No doubt what was present to his mind was a decision of the Full Bench passed in the year 1880 and reported in Umr-un-nissa v. Muhammad Yar Khan . I have already, as the learned Chief Justice has observed, taken occasion, in conjunction with my brother Tyrrell, in the case of Nura Bibi v. Jagat Narain , to explain the circumstances under which that particular ruling was delivered by the Full Bench. Having again refreshed my memory by reference to it, I am convinced that I was right in saying that the whole argument of the Full Bench proceeded upon the assumption that art. 144 of the Limitation Act was the article applicable to those particular facts and assuming that particular article applicable, the question was whether, as is stated in the order of reference of the two learned Judges, there had been such physical possession as would lay the foundation for finding adverse possession. I am quite convinced that the equitable principle which was then recognized, under which a co-mortgagor redeeming for his other mortgagors was entitled upon redemption of the whole mortgage to hold their shares as against them as security for the mortgage, was her referred to or discussed and there was at that time no statutory provision in force, which could have been brought to the attention of the Judges of the Full Bench, to show that article 148 was the limitation article applicable. Therefore, in so far as there is anything in that case to militate with the contention now raised, it must be taken that case never did decide and must not be regarded as an authority for deciding that article 148 is not applicable to such facts as we have here. Therefore, it must be dismissed from consideration in dealing with the questions submitted to us.
Then arises the question whether art. 148 is applicable and if so, from what date does the limitation begin to run. Does it run from the date of the original mortgage, or does it run from the date of the redemption of the whole mortgage by one of the co-mortgagors? As to art. 148 being applicable, I have no doubt I have already committed myself to that view in the case of Nura Bibi v. Jagat Narain and there have been several other rulings to the same effect, among others one reported in Weekly Notes of 1886, p. 152 (Raghubar Sahai v. Bunyad Ali). Further, even before the Transfer of Property Act came into operation, I took the view that a co-mortgagor redeeming the whole mortgage stood in the shoes of the original mortgagee and was entitled to all the rights and the incidents connected with his estate. The principle that underlies that is, that he having paid off the obligation to the creditor is entitled to take advantage of all the incidents connected with the security as it stood in the hands of the mortgagee, or, in other words, he is entitled to all the rights and incidents connected with the mortgage as they were in the hands of the mortgagee at the time the redemption took place. Among others, he cannot say that a new mortgage transaction commenced from that particular date, but his position as mortgagee stands upon the same footing as it would have if the original mortgagee had assigned over to him by sale his mortgage interest. Not only do I think that a co-mortgagor redeeming the whole mortgage stands in the position of the original mortgagee, but that time rues from the date of the original mortgage. No doubt this view is inconsistent with one expressed by the late Chief Justice, Sir Comer Petheram, in the case of Ram Singh v. Baldeo Singh . That learned Judge was of the same opinion as I am as to the applicability of art. 148 to the facts then before him. But it does not appear to have been seriously discussed before him as to what was the precise date from which the limitation would run. Mr. Abdul Majid is entitled to use that judgment in his favour and it is entitled to all the respect which every utterance of that learned Chief Justice deserves. But I cannot myself agree with the view that the limitation runs from the date her redemption took place. It must, in my opinion, relate back to the date of the original mortgage and upon this I have explained my reasons in the case of Kura Bibi v. Jagat Narain . The conclusion I have arrived at is the same as that of the learned Chief Justice, viz., that this suit was barred and that this appeal must be dismissed with costs.
Mahmood, J.:— The facts of the case, as also the points of law raised by the arguments of the parties before me when the case first came up before me in the Single Bench, are fully stated in my order of the 17th July 1888 and I regard what I then said as a portion of my judgment to-day.
That order shows that, at any rate, the case was a fit one for being disposed of a Bench consisting of more than one Judge and it was in consequence of that circumstance that the case was laid before my brother Straight and myself and by our order of the 6th December 1888, it was laid before the learned Chief Justice for consideration as to whether it should not go before a Bench of three Judges. It is in consequence of this circumstance that this is a third time that this Court is hearing the case and it has not been due to any other cause than my desire to obtain such authoritative ruling upon the points raised in the case as this Court can give.
The points which arise in the case have been so completely dealt with by the learned Chief Justice and my brother Straight that I should be unnecessarily taking their time if I dwelt upon the same points or made any endeavour to give expression to any exposition of the law which would minutely deal with the various cases that may arise under it. The question, however, upon which the fact of the case turns requires two things,—first, that it should held by us that art, 144 of sch. ii of the Limitation Act has no reference to suits of this character and secondly, that suits of this character are governed by art. 148. Upon both these questions I, who am never content with dealing with any case without dealing also with the ratio, viz., the essential steps of reasoning, upon which the judgment proceeds, have no hesitation in saying with all deference that the judgment of the Full Bench in Umr-un-nissa v. Muhammad Yar Khan proceeds upon a theory of law as to the application of the article 144, which I final impossible to accept, notwithstanding the clear distinction which my learned brother Straight drew in the case of Nura Bibi v. Jagat Narain , the result of which we have held to-day is to say that the Full Bench ruling need no longer be referred to for the purposes of finding out the periods of limitation for suits.
Again, it is also clear and I do not wish to add a single word to what has fallen from my brother Straight upon the subject, that the ruling referred to in my referring order, viz., Ram Singh v. Baldeo Singh , cannot possibly be consistent with the ratio upon which our judgment proceeds. The truth is, as I understand the law, that there are various manners and methods whereby a person may stand in the shoes of a mortgagee. There may be a case such as that of an assignee, or there may be a case such as that which the broad principle of equity known as subrogation involves. A co-sharer suing for the redemption of the whole of the property and obtaining redemption thereof is not a person in adverse proprietary possession, as the Full Bench ruling would probably require. He is simply by subrogation on the same footing as an ordinary person would be as representing the mortgagee, or rather the mortgagee's interest in property, quoad such of his co-sharers as have not either secured redemption or sued for it.
When in a suit the question arises whether or not a co-sharer can obtain his share from a redeeming co-sharer, the case to my mind is a suit such as art. 148 contemplates and such a suit is governed by the sixty years' period. In the present case the original mortgage was so old as 5th of July, 1822. There was no endeavour made to prove that the redemption which took place in 1828 was other than an ordinary redemption by one co-sharer of the other co-sharer's property. The present defendants represent the right of the redeeming co-sharer and they are entitled to rely upon the same limitation as art. 148 would require.
There is, however, because it is on account of that reference of mine that the case has come up before us, one point more that I wish to add. The reference, of course, relates to four properties as mentioned in my referring order and what we have held with regard to this mortgage renders it unnecessary for us to consider the other mortgages mentioned in the judgments of the Courts below. The view we have now taken defeats the whole suit. The result is exactly what the learned Chief Justice and my brother Straight have said, viz., that this appeal stands dismissed with costs.
Appeal dismissed.