Judgement

Appeal (No. 86 of 1927) from a decree of the High Court (March 27, 1925) reversing a decree of the Subordinate Judge of Mozaffarnagar (January 20, 1923).

The suit was brought by Alice Georgina Skinner to recover possession of five villages by redemption of a mortgage executed in 1863 by her father. The plaintiff had become entitled to the villages in 1919 under her fathers will upon the successive deaths without issue of her three brothers. The defendant purchased the villages in 1904 from the Nawab of Rampur, to whom the mortgagees, acting as absolute owners, had mortgaged, and had subsequently sold them, in 1898 and 1903 respectively. The plaintiff died before the appeal to the High Court; the present appellant was her executor.

The facts appear fully from the judgment of the Judicial Committee.

The effect of the will of the plaintiffs father and the position as to mortgages created by him were dealt with by the Board in 1913 in Skinner v. Naunihal Singh. (( 1913) L. R. 40 I. A. 105.)

The Subordinate Judge made a decree in favour of the plaintiff ; he held that art. 140 of the Indian Limitation Act, 1908, Sch. I., applied, and that consequently the suit was not barred by adverse possession, as the defendant had pleaded.

Upon appeal to the High Court the defendant raised the contention that the suit was barred by art. 134. The learned judges (Lindsay and Kanhaiya Lai JJ.) held that that article applied, and that it controlled both art. 140 and art. 148; the appeal was therefore allowed and the suit dismissed. The appeal is reported at I. L. R. 47 A. 803.

1929. Feb. 21, 22, 25. De Gruyther K.C. and Kenworthy Brown for the appellant. When the mortgagees were put into possession and when they transferred the property the plaintiff had an interest in remainder which was not thereby affected. The suit being by a reversioner is governed by art. 140, and therefore is not barred. That view is supported by Runchordas Vandrawandas v. Parvatibhai. (( 1899) L. R. 26 I. A. 71.) The plaintiff cannot have lost her right to redeem before she became entitled to do so. Th§ view in the High Court renders art. 140 of no effect. But in any case art. 134 applies to a mortgaged property only when a mortgagee in possession under the mortgage has purported to transfer an absolute interest. Here the mortgagees at the date of the transfer were not in possession under the mortgage of 1863, but under a defective absolute title ; in effect they transferred only their mortgagee rights. [Reference was made also to Husaini Khanam v. Husain Khan (( 1907) I.

L. R. 29 A. 471.) ; Ram Piari v. Budh Sen (( 1920) I. L. R. 43 A. 164.) ; and Bhup Singh v. Zain-ul-abdin. (( 1886) I. L. R. 9 A. 205.)]

Upjohn K.C. and Dube for the respondent. Art. 134 applies exactly to this case. More than twelve years before the suit there was a transfer of possession by a mortgagee for valuable consideration. In Radanath Doss v. Gisborne (( 1871) 14 Moo. I. A. 1, 16.) Lord Cairns, in referring to the corresponding provision of the Act of 1859, says it means a purchaser of " a de facto mortgage upon a representation made to him, and in the full belief, that it is not a mortgage, but an absolute title." That language applies, if not to the mortgage of 1898, to the sale of 1903. The respondent is supported by Husaini Khanam v. Husain Khan (( 1907) I. L. R. 29 A. 471.) and eases there cited. Art. 134 is to be regarded as an exception out of art. 148. Art. 140 does not apply. The article applies only to reversionary interests created by a settlement. In India an equity of redemption is not an estate see Transfer of Property Act, 1882, s. 60. Here the wrongful possession occurred while a person entitled in fee had the right to sue, and under s. 9 time having commenced to run continued to do so. The plaintiff was not a reversioner for the purpose of art. 140 Kashi Prasad v. Inda Kunwar. (( 1908) I. L. R. 30 A. 490, 498.)

Kenworthy Brown in reply. Even if there was a transfer of po