Gulab Singh vs Amar Singh and Another

Pearson, J.—On the 19th December 1876, Amar Singh borrowed money from Tota Ram, and mortgaged his zamindari share as security for the repayment of the amount. The agreement was that the mortgagor should remain in possession of his share and pay the interest on the loan annually to the mortgagee who, in the event of default in payment of the interest, was empowered to sue for the actual possession of the share. By the terms of the wajib-ul-arz the plaintiff contends that he was entitled to have had an offer of the share made to him before it was mortgaged to Tota Ram, and he now claims proprietary possession of it. The suit was instituted on the 8th February 1878, and the cause of action is said to have arisen on the 19th of May 1877, when Tota Ram''s name was substituted for that of Amar Singh in the proprietary registers in pursuance of the transaction. The plaint, however, alleges that Amar Singh notwithstanding the mutation of registry, is still in possession of the share. On the other hand Tota Ram alleges that he has been in possession of it since the execution and registration of the deed of mortgage. Whether the mutation of registry was merely a precaution to secure the mortgagee''s interests, whether he has been only hitherto receiving the interest due to him annually for the mortgagor still in possession of the share, or whether in consequence of default in payment of the interest the share has passed into the actual possession of the mortgagee, these are questions which find no answer in the judgments of the lower Courts. But it seems to us that whether, as Tota Bam avers, he has been in plenary possession since the date of the deed, or whether, in accordance with the tenor of the deed he has only had such constructive or partial possession of it as is involved in the receipt of interest on the loan secured by the mortgage, the plaintiff was equally bound to have brought his suit within a year from the date of the deed, and is not entitled to reckon the year from the date on which the possession of the mortgagee of the share was rightly or wrongly recognised by the revenue department. Concurring therefore in the opinion of the lower Courts that the suit is barred by Article 10,* Schedule ii of Act XV of 1877, we disallow the pleas in appeal, and dismiss the appeal with costs.

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*[Article 10: ---------------------------------------------------------------------------------------------- Description of suit Period of Limitation. Time from which Period begins to run. ----------------------------------------------------------------------------------------------

To enforce a right of pre- One year. When the purchaser takes under the emption whether the right is sale sought to be impeached physical founded on law, or general possession of the whole of the pro- usage, or on special contract. perty sold, or, where the subject of the sale does not admit of physical possession, when the instrument of sale is registered.] ----------------------------------------------------------------------------------------------