The central legal point established in the judgment is the interpretation and application of the provisions of the Limitation Act, particularly Art. 125, in determining the time-barred nature of the suit for a declaration of void mortgage and decree.

Kotval—Plaintiff 1 is the daughter of one Raghoba deceased. Plaintiffs 2 and 3 are her sons. Defendants 3 and 4 are the widows of two SONS of Raghoba. Defendants 1 and 2 are mortgagees of a part of Raghoba's property from defendants 3 and 4, and have obtained a final decree for sale of the mortgaged property.

2. The plaintiffs slate that Ragboba had by an oral will given the property to defendants 3 and 4 for their maintenance during their lifetime and thereafter to his heirs, plaintiff l and plaintiffs 2 and 3 in succession.

3. They therefore sue for a declaration in favour of all the plaintiffs, or plaintiff 1 or plaintiffs 2 and 3, that the mortgage and the decree are void as against them and that they are entitled to get the property free from the mortgage after the deaths of defendants 3 and 4.

4. One of the defendants pleas was that the suit was barred by time. The lower Courts have applied Art. 125, 2nd Schedule, Limitation Act, and held that as the mortgage was executed on the 18th May, 1900, this suit brought on the 12th September, 1918, was time-barred.

5. Plaintiffs in this Court urge that the mortgage was not an alienation of land within the meaning of Art. 125. That a mortgage is such an alienation has been held in Jaggi v. Prithi Pal,1894 AWN 134. This case was like the present one of a simple mortgage. The mortgage held to be an alienation in Kamini Kumar Mukerji v. Bisseswar Chakravarti,1907 6 CLJ 20 was a mortgage by conditional sale. For the purposes of Art. 125 land must be taken to include an interest in land. The legislature cannot have intended to allow the suit referred to in Art. 125 to be brought only in respect of out and out dispositions of property such as sales or gifts and not mortgages.

6. It is further urged that the decree itself is an alienation and limitation starts from the date of the decree. I fail to see how a mere decree for sale can be considered to be an alienation. It does not even appear that a sale has taken place under it which might possibly afford a basis for the contention.

7. It is next said that the mortgage in this case is unregistered and the plaintiffs only came to know of it in 1918 and limitation therefore begins from that date.

8. It is not suggested that the plaintiffs were kept from the knowledge of the alienation by fraud. Time must therefore commence from the date of the alienation prescribed in the third column of Art., 125; vide Lukmickand v. Ganpat,1909 5 NagLR 28.

Finally, it is urged that in any case the plaintiffs suit for a declaration in respect of the decree is within time under Art. 120.

9. The rulings cited above are authority for the view that if the suit for the declaration referred to in Art. 125 is barred, the Court cannot grant a declaration in respect of the decree such as is sought by the plaintiffs.

The appeal is dismissed with costs.

Final Result : Dismissed