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Smart Summary

Factual and Procedural Background

This is a suit for redemption of a usufructuary mortgage originally executed in 1822. One of the original mortgagors redeemed the whole mortgaged property in 1828. The plaintiffs commenced this suit for redemption against the heirs of that redeeming mortgagor on 5 February 1886. The lower appellate court dismissed the suit on the ground that it was barred by limitation. The matter was then heard by a multi‑judge bench (including Edge, C.J.; Straight, J.; and Mahmood, J.), which considered whether the suit was governed by article 148 or article 144 of the Limitation Act and from what date the period of limitation ran.

Legal Issues Presented

  1. Is this suit governed by article 148 of the Limitation Act or by article 144 of the Limitation Act?
  2. If article 148 applies, does the period of limitation begin to run from the date of the original mortgage (1822) or from the date of the redemption by one co‑mortgagor (1828)?
  3. If article 144 applies, is the defendants' possession acquired under the redemption of 1828 to be taken as adverse to the plaintiffs from that date (i.e., does adverse possession start from 1828)?

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Umr-un-nissa v. Muhammad Yar Khan (Full Bench, 1880) The Full Bench proceeded on the assumption that article 144 of the Limitation Act was applicable to the facts before it and examined whether there had been such physical possession as would found adverse possession. The bench in the present case concluded that the Full Bench's ruling rested on the assumption that art. 144 applied and that the Full Bench was not shown article 148; consequently the present Court held that the Full Bench decision cannot be treated as deciding that art. 148 is inapplicable and the earlier Full Bench ruling was dismissed from consideration for the present questions.
Nura Bibi v. Jagat Narain Used by members of the bench (Straight and Tyrrell) to explain the circumstances under which the Full Bench ruling in Umr‑un‑nissa was delivered; Straight had previously taken the view that art. 148 was applicable in such cases. The present Court relies on the explanation given in Nura Bibi to show that attention was not drawn to art. 148 before the Full Bench; Nura Bibi supports the view that art. 148 can be applicable to suits of this character.
Raghubar Sahai v. Bunyad Ali (Weekly Notes 1886, p. 152) Cited as one of several rulings supporting the applicability of article 148 to cases where a co‑mortgagor redeems the whole mortgage and stands in the shoes of the mortgagee. Used by the Court as additional authority for holding that art. 148 applies to suits of this nature.
Ram Singh v. Baldeo Singh Contains an earlier view (expressed by Sir Comer Petheram, late Chief Justice) which, while accepting the applicability of art. 148 to the facts before him, had been read as supporting the proposition that limitation runs from the date of redemption. The Court acknowledged the judgment and said Mr. Abdul Majid (a party/counsel) was entitled to use it in his favour; but the present Court did not accept the view that limitation runs from the date of the redemption and considered that Ram Singh was not discussed on the point of precise date sufficiently to bind the present Court.
Kura Bibi v. Jagat Narain Straight J. stated that he had explained his reasons in this case for the proposition that the limitation period relates back to the date of the original mortgage rather than to the date of the subsequent redemption. The present Court relies on the reasoning given in that case (as cited by Straight J.) to support the conclusion that limitation runs from the date of the original mortgage.

Court's Reasoning and Analysis

The judges approached the questions by first determining which article of the Limitation Act applied and then from what date the limitation period ran.

Edge, C.J. — Edge took the view that the limitation applicable to this suit is the one that would have applied had the original mortgagee (or his heirs) been defendants in the redemption suit; that is, article 148 of the Limitation Act applies. He reasoned that where one of several co‑mortgagors redeems the whole property, the redeemer "stands in the shoes" of the mortgagee with respect to the share representing co‑mortgagors' interests and thereby acquires the same rights and liabilities as the mortgagee. On that basis, Edge concluded that the period of limitation does not commence from the date of redemption by a co‑mortgagor but from the time it would have run against the original mortgagee. Applying art. 148 in that way, Edge concluded the suit was time‑barred. Edge also observed that if the Full Bench decision in Umr‑un‑nissa were treated as exhaustive, it would also lead to dismissal of the suit, since more than twelve years had elapsed since the 1828 redemption.

Straight, J. — Straight framed the three specific questions (art. 148 v. art. 144; starting point of limitation if art. 148 applies; effect of possession if art. 144 applies). He analyzed the Full Bench decision in Umr‑un‑nissa and concluded that that decision had proceeded on the assumption that art. 144 applied; accordingly, the Full Bench had considered whether there had been physical possession amounting to adverse possession. Straight emphasized that the Full Bench had not been shown article 148 and so its reasoning could not be taken as deciding that art. 148 was inapplicable. Straight reiterated his prior commitment (in Nura Bibi v. Jagat Narain) that a co‑mortgagor who redeems stands in the position of the mortgagee and acquires the same rights and incidents attached to the mortgage as at the time of redemption. From that stance, Straight concluded that limitation must relate back to the date of the original mortgage (1822) rather than the date of redemption (1828). He expressly disagreed with any view that the limitation should run only from the date of redemption and explained that view in his earlier judgment (cited as Kura Bibi v. Jagat Narain). On those grounds Straight held the suit to be time‑barred.

Mahmood, J. — Mahmood noted the history of the case's referral and said he adopted and relied on the analysis of Edge and Straight. Mahmood added that he could not accept the Full Bench theory concerning the application of art. 144 and agreed that suits of the present character fall within the ambit of art. 148. Mahmood articulated the equitable principle of subrogation: a co‑sharer redeeming the whole is not in adverse proprietary possession but by subrogation stands in the mortgagee's position vis‑à‑vis non‑redeeming co‑sharers. On that footing Mahmood concluded that art. 148, which prescribes a sixty‑year period, governs such suits. Because the original mortgage dated from 5 July 1822 and the defendants represent the redeeming co‑sharer, he held the defendants could rely on article 148 and the suit was defeated on limitation grounds.

Collectively the bench (Edge, Straight, Mahmood) analyzed whether art. 144 or art. 148 applied, rejected reliance on the Full Bench decision that had assumed art. 144, held that a co‑mortgagor who redeems stands in the mortgagee's shoes (equitable subrogation/assignment analogy), and concluded that article 148 governs suits by co‑sharers to recover shares from a redeeming co‑sharer. They further held that the limitation period relates back to the date of the original mortgage (as stated by Straight and Mahmood) and, applying article 148, found the present suit to be time‑barred.

Holding and Implications

Holding: Appeal dismissed. The Court dismissed the appeal and ordered costs against the appellants.

Implications (as stated in the opinion):

  • The Court held that suits of this character (a co‑sharer seeking redemption of his share after another co‑mortgagor redeemed the whole) are governed by article 148 of the Limitation Act (the sixty‑year period), not article 144, because the redeeming co‑mortgagor stands in the shoes of the mortgagee by subrogation and the limitation runs as it would against the original mortgagee.
  • The Court (majority expressed by Straight and Mahmood; supported by Edge) concluded that the period of limitation relates back to the date of the original mortgage (1822) rather than to the date of the subsequent redemption (1828), and, on that basis, found the suit to be barred by time.
  • Direct effect: the plaintiffs' suit for redemption was defeated by limitation and the appeal dismissed with costs.

Appeal dismissed.

    Ashfaq Ahmad v. Wazir Ali

    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.

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    Comments

    Ashfaq Ahmad v. Wazir Ali
    (Jan 18, 1889)