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Judgment
Phillips, J.—Plaintiff''s suit is brought to set aside an alienation made by 1st defendant widow of one Krishna Iyer, plaintiff being the nearest
reversioner. Krishna Aiyar sold the property in 1883 to his concubine and another and they executed a hypothecation deed in favour of one Rama
Rao in 1885. In a suit by the widow this mortgage was recognised as valid and in another suit by a subsequent mortgagee it was again held to be
valid against the widow. A decree was obtained against Rama Rao, and in execution his mortgage deed was sold and purchased by one Rama
Aiyar, who brought a suit upon it. The widow at first contested the suit, but abandoned her defence. The mortgaged property was therefore
brought to sale and purchased by 2nd defendant in October 1902. It is contended for appellant that this sale in 1902 amounted to an alienati m by
the widow and that this suit brought in 1913 is within time.. The only question that need be considered now is whether the facts of the case
establish the fact that this sale amounted to an alienation by the widow. A statement by the widow (Exhibit D) admitting the claim has been found
by the Subordinate Judge not to have been presented1 by the widow herself, but in other portions of his judgment he finds that she confessed
judgment from corrupt motives. It is alleged that she received Rs. 900 as consideration for not contesting the suit, but the Subordinate Judge only
finds this to be probable and does not say it was proved. It is sufficient for plaintiff''s case to prove that the widow had done an act which
necessarily resulted in the transfer of the property vide Sheo Singh v. Jeoni ILR (1897) ILR 19 All. 524. The question, therefore, for decision is
whether the widow''s withdrawal of her defence amounted to such an act. It must be remembered that the mortgage had already been held in
judicial decisions to be valid and binding on the widow, and although the Subordinate Judge has now found that it is not valid, his decision is based
on evidence given 30 years after the mortgage was executed, and his finding is merely that consideration has not been proved. Except for the
allegation that the widow received Rs. 90t), there is no evidence of collusion between her and the plaintiff in the suit on the mortgage bond. ln view
of the previous proceedings it was most unlikely that a defence by the widow would have been successful. That being so the sale would in all
probability have taken place without any act on her part and therefore I am unable to say that the widow''s action had as a necessary result the
transfer of the property, nor can it be said that she materially contributed by her action to the transfer. Her action in 1900, more than 12 years
before suit, followed by the sale in 1902 cannot therefore be said to amount to an alienation. Article 12.5 of the Limitation Act is therefore
inapplicable and under Article 120 the suit is barred by limitation.
A number of other questions have been argued for respondents Nos. 2 and 8, which are decided against them by the Subordinate Judge, but it
is unnecessary to discuss them in view of the above finding.
The Second Appeal fails and is dismissed with costs.
Krishnan, J.
The judgment of the Lower Court that this suit is barred by limitation under Article 120 of the Limitation Act is, in my opinion, correct. The
appellant''s vakil has contended that Article 125 applied but on the facts found the sale in question cannot by any stretch of language be considered
as one ""made"" by the widow.
The sale impugned is the court sale in 1902 in which the 2nd defendant purchased the plaint property for Rs. 3,100. Ordinarily a court sale
cannot be treated as a sale by a private individual. But the appellant''s vakil has relied on the case in Earl of Bandon v. Becker (1885) 3 Cl. & Fin.
479 : 6 E.R 1517 to show that a court sale should be treated as a private sale where it is the result of a collusive suit or proceeding in court.
Assuming this argument is correct, to justify in treating the court sale in this case as a private sale by the widow it must be shown that it was the
necessary result of some collusive arrangement made by her to use the court as a medium of transfer, or in other words that she intended to
transfer the property by means of a court sale and took steps to bring it about. Any failure on her part to defend an action in which a decree was
passed in execution of which the property was sold by the Court is insufficient to make the court sale her sale, unless the decree and sale were the
necessary result of her action and unless the failure to defend was itseli part of the contrivance adopted by her to bring about the intended court
sale. The evidence in the present case falls far short of these requirements. The mortgage suit in which the sale took place was in no way a collusive
suit. The widow had nothing to do with the original mortgage deed itself. All that is proved is that though the widow set up the defence in the
mortgage suit that the mortgage sued upon was not valid and was without consideration, she subsequently did not appear and press her defence
and that she acted thus from some "" corrupt motive"" because the Subordinate Judge says she probably received some Rs. 900 from the plaintiff in
that suit to abstain from defending. It is not shown that her defence would have succeeded and would have led to the suit being dismissed and the
property being saved. It may be noted that in a previous suit by one Peruma Goundan she did press her present defence to a decision, but the
decision was against her and in favour of the mortgagee. It is true that the Subordinate Judge now finds that it is not proved by the 2nd defendant,
the. auction purchaser that any money passed under the mortgage to Krishna Aiyar the widow''s husband and the original owner of the property.
In the mortgage suit the burden was on the widow to establish that the mortgage had no consideration against the mortgagee''s assignee Rama
Aiyar. It is one thing to find that an auction purchaser in eourt sale who is a stranger to the previous transactions '' has failed to prove consideration
in the suit and quite another thing to hold that the widow would have succeeded in establising failure of consideration against the mortgagee''s
assignee, in the former suit where the burden of proof was on her. The present finding therefore does not lead to any conclusion that the mortgage
decree was the result of her failure to press her defence.
The plaintiff attempted to show that that decree was one passed on a confession of judgment by the widow and for the purpose he relied on a
statement filed in Court, Exhibit D. But ihe Lower Court has found that it is not proved that the widow either signed or presented it to Court. This
is in accordance with what appears in the judgment in that suit which shows that Exhibit D was neither noticed nor acted upon. In the above
circumstances the Lower Court was right in holding that the Court sale could not be treated as an alienation by the widow.
The cases quoted by the larned vakil for the appellant in Sheo Singh v. Jeoni I.L.R (1897) All. 524 and Ram Sarup v. Ram Dei ILR (1906) All.
239 are both clearly distinguishable as in both of them, it was proved that the widow intended by the collusive proceedings, one being a decree for
possession and the other an arbitration to get her husband''s property transferred to others and that she carried out her intentions by such means. In
the present case the suit was not a collusive one and whatever collusion there might be, in not pressing the defence it is not shown that it was
intended to, and did in fact, bring about the Court sale now sought to be avoided.
There being thus uo alienation by the widow Article 125 of the Limitation Act cannot apply; and the suit being a declaratory one the only article
applicable is Article 120; and under it the suit is clearly barred being more than 6 years from the date of sale.
The case mainly relied on by the Subordinate Judge in Tallapragada Sundarappa v. Boorugapalli Sreeramulu ILR (1907) Mad. 402 : 17 M.L.J.
288 is not in point as there was no alienation at all in that case as the property had only been attached and not sold, as appears from the statement
of facts in the report. But apart from this his view of the law is correct and I accept it. He has discussed various other questions and given findings
on them; and though the learned Vakil for the respondents has attacked those findidgs it is quite unnecessary to consider them as the suit fails on
the ground of limitation.
I agree with my learned brother that the Second Appeal should be dismissed with costs.