Decided on June 21,1950

BEHARI LAL Appellant
Dal Chand And Ors. Respondents


Kapur, J. - (1.) ISHAR Singh Defendant 1 mortgaged with possession for a sum of Rs. 2400 the house in dispute to Bohru Mal Mahajan by means of a registered deed dated 17 -8 -1928, Ex. D -2, and he mortgaged on 6 -12 -1933, a haveli for Rs. 3000 by means of Ex. D -l. Behari Lal, who is the son of Ishar Singh, brought a suit on 27 -10 -1945 for declaration to the effect that these mortgages were not binding, on him and that an injunction may be issued to Defendant 2, the mortgagee restraining him from interfering with the Plaintiff's possession of the said property. It was nowhere alleged that the possession had been taken or if it had been taken when it had been taken. The defence inter alia was that the suit was barred by time. The trial Court held the suit to be barred by time and this finding was affirmed by the learned District Judge. The Plaintiff has come up in appeal to this Court.
(2.) THE Plaintiff submits that the finding of the learned District Judge is wrong because he was less than twenty -one years of age when he brought the suit. The evidence which was produced by the Plaintiff was of five witnesses including himself. P.W. 1, Nanak Chand prepared his horoscope but the horoscope was not produced in Court. Plaintiff's witnesses Nos. 2, 3 and 4 are old men of the village and they have variously stated that the age of the Plaintiff on the date they were giving evidence was 21 or 22 years or it was 20 or 21 years. The statement of the Plaintiff himself was that he was 20 or 22 years of age on the date he was giving evidence which was in 1947. The learned District Judge relied on a birth entry made in the school register, Ex. D.W. 3/1, and Mr. Pandit has submitted that the evidentiary value of this register is very little and that the learned District Judge has not considered his evidence with regard to age. The onus of proving that the Plaintiff was less than 21 years of age on the date be filed the suit was on him and, in my opinion, on the evidence that he has led it is not possible to hold that he has discharged the onus. In my opinion, therefore, the learned District Judge rightly held that the Plaintiff has not proved that he was twenty -one years of age or less on the date when he filed the suit. The learned Counsel then submitted that in any case the second alienation of 6 -12 -1933 would be within time on the date when he filed the suit. The article applicable according to the learned advocate is 126 of the Limitation Act which provides: JUDGEMENT_9_LAWS(P&H)6_1950.htm The submission comes to this that the suit is for a declaration with a prayer for injunction to restrain the Defendant from interfering with the Plaintiff's possession and therefore he submits that Article 126 applies and he relies on two judgments of the Lahore High Court in Gokha Ram v. Sham Lal 3 Lah. 420 : (A.I.R. 1923 Lah. 268) and Dev Raj v. Shiv Ram, 25 I.C. 463 at p. 466 : (A.I.R. 1914 Lah. 408). In the former case where a mortgage with possession had been effected by the father in favour of Rosha, it was held that a suit for mero declaration that the alienation would not affect the Plaintiff's rights is not covered by Article 120, Limitation Act but where the suit is for annulment of' the sale and in fact the decree is also for the same, Article 126 applies and not Article 120. But whether this case is correctly decided or not it can have no application to the facts of the present case because the question has not been discussed as to whether this article applies in the case of alienation where no possession has been taken. In the second case all that the learned Judges said was that the phrase "set aside" in Article 120 implies a prayer for immediate relief, and not for a more declaration. That again, in my opinion, does not assist us in interpreting Article 126 when applied to the present case.
(3.) IN col. 3 of Article 126 the words used are "when the alienee takes possession of the property". In my opinion, this article applies to those suits where the alienee has taken possession and has no application to those where the possession has not been taken. In Rustomji's Limitation Act at p. 1092 it is said under this article: Time runs only when the alienee takes possession and therefore when possession is not taken under the alienation, the statute does not begin to run. In Chintaman Balwant v. Bhagwan Ganpati : A.I.R. 1928 Bom. 383 : (113 I.C. 378) it was held that Article 126 contemplates the case of an alienation where the alienee has taken possession of the property, because limitation only runs from the date when the alienee so takes possession. In a case where the alienee never gets possession, no limitation can arise under Article 126; and in such cases the only right of the son will be to obtain a declaration that the deed is invalid and the limitation prescribed for such a suit is that of six years under Article 120. In Munia Goundan v. Ramasami Chetty : 41 Mad. 650 656 : A.I.R. 1918 Mad. 19 Sadasiva Ayyar J., interpreting Article 126 said: The Legislature has clearly fixed an overt and patent fact, namely, the taking of possession of the property by the alienee as the event from which the period has to be calculated so as to avoid as far as possible difficult questions as to notice. With this view I most respectfully agree. This view also finds support from the judgment of Addison J., in Luta Ram v. Shiv Ram, 114 I.C. 59 at p. 60 : (A.I.R. 1929 Lah. 14). In my opinion, therefore, Article 126 has no application to the facts of this case but the article which would apply would be the residuary Article 120. I may add here that the question of applicability of Article 126 was never raised at any time in the Courts below and it is the ingenuity and ability of Mr. Prem Chand Pandit which is responsible for this new question. But as it went to the root of the case, I allowed it to be raised.;

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