MANAVIKRAMAN ETTAN THAMBURAN Vs. AMMU
MANAVIKRAMAN ETTAN THAMBURAN
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Arnold White, C J -
(1.) The question in this case is whether certain immoveable property which had been mortgaged was purchased by the appellant within the meaning of Art. 134 of the Indian Limitation Act, 1877. Art. 134 re-produces Section 5 of Act XIV of 1859 in so far as that section applies to immoveable property, whilst Art. 133 re-produces it in so far as it applies to moveable property. The section is an expansion of Section 25 of the English Act which is an exception engrafted upon Section 24 of that Act.
(2.) The point arises in this way. In 1864 A mortgaged certain lands to B for Rs. 750. In 1881 by an instrument which recites that the lands in question were the jenmam properties of B. B. mortgaged these lands to G for Rs. 5,000. A brings a redemption suit. C contends that A is bound to redeem C's mortgage before he can recover possession of the property. C does not sat up an absolute title. He admits A's right to possession on payment of C's mortgage, but he says that, as A's suit to recover possession is brought more than twelve years after C's purchase, Art. 134 gives C the right to be redeemed, in other words, that C's mortgage, which, but for the law of limitation, would be invalid as against A, became good as against A after the lapse of twelve years from the date of C's purchase.
(3.) Purchase, as used in English Statutes with reference to real property, includes a mortgage, legal or equitable. See Willoughby V/s. Willoughby 1 R.R. 397 at p. 402, Dolphin v. Aylward L.R. 4 H.L. 486, Lister V/s. Turner 5 Hare. 281. For the purposes of the Conveyancing and Law of Property Act, 1881, and the Conveyancing Act, 1882, the word purchaser includes "a lessee or mortgagee or an intending purchaser, lessee or mortgagee or other person who for valuable consideration takes or deals with property." Unless concluded by authority to the contrary, I should certainly be prepared to hold that the word purchaser must be construed in the sense in which it is used in English Statutes relating to land as including mortgagee. For the purpose of the application of the law of limitation it is difficult to see any principle on which a distinction can be drawn between an out and out sale and a mortgage The one seems to fall as much within the equity of the article as the other.;
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