Judgement Appeal from a decree of the High Court (Feb. 16, 1898) affirming a decree of the Subordinate Judge of Gorakpur (Nov. 28, 1894). The appellant, on July 4, 1894, sued the respondents, under the circumstances stated in their Lordships judgment, to enforce her right of pre-emption in respect of certain shares in villages named in the plaint. The respondent Bhagwati Parshad alone put in a written statement, in which he pleaded limitation. Both Courts upheld this plea. The First Court applied the law Laid down in Ali Abbas v. Kalka Prasad (Ind. L. R. 14 Allah. 405.), and held that, as six years had expired from the year of grace in certain foreclosure proceedings which completed the respondents title, the suit was barred. The date of that expiry was January 20, 1881. The High Court, while affirming this decree, considered that the Subordinate Judge had misunderstood the case on which he relied. They dissented from the proposition of law enunciated in that case, where it was held that the sale referred to in art. 10 of the 2nd schedule of Act XV. of 1877 (The Indian Limitation Act) must be an absolute one having immediate effect and operation, in those cases where the interest passed is capable of physical possession, by physical possession, and where it is not by the creation of a title under an instrument duly registered. They could not see how a sale was any the less an absolute one because it was not to take immediate effect and operation, and in their opinion, the other conditions being present necessary to make art. 10 applicable, art. 10 could apply to a sale which in its inception was a mortgage by conditional sale, but which either by the operation of Regulation VII. of 1806, or by the operation of Act IV. of 1882, had become in effect an absolute sale, with the right of redemption gone. The judgment was concluded in the following terms — 14 In the present case, if the whole of the property sold was capable of physical possession being taken by the mortgagee-vendee, we should hold that art. 10 of the 2nd schedule of Act XV. of 1877 applied. The question really turns, as we have said, on what is the meaning of physical possession as that term is used in art. 10 of the 2nd schedule to Act XV. of 1877. 10 of the 2nd schedule of Act XV. of 1877 applied. The question really turns, as we have said, on what is the meaning of physical possession as that term is used in art. 10 of the 2nd schedule to Act XV. of 1877. It must mean something different from actual possession/ and it must mean something different from ordinary possession. In clause 1 of s. 1 of Act XIV. of 1859, which was the clause prescribing the limitation in suits for pre-emption, the term used was ‘possession, and limitation ran from the time of possession being obtained by the vendee. In Goordhun v. Heera Singh (( 1866) S. D. A. N. W. P. 181.) a Full Bench of the Sadr Diwani held that the possession of Act No. XIV. of 1859 must be an actual and not a constructive possession. In 1868 the question came again before a Full Bench, then of this Court, and in Ganeshee Lal v. Toola Ram (( 1868) N. W. P. H. C. Rep. 376.) the Full Bench decided that the possession of Act XIV. of 1859 included constructive as well as actual possession. It is probable that that decision led to the alteration of the wording of the article relating to limitation in pre-emption suits in the next succeeding Limitation Act. In art. 10 of the 2nd schedule to Act No. IX. of 1871 it was prescribed that limitation should run from the date when actual possession was taken under the sale. Then came a Full Bench of this Court in 1876, Jageshar Singh v. Jawahir Singh and Others ((1376) Ind. L. R. 1 Allah. 311.), in which a majority of the Full Bench held that the actual possession of Act No. IX. of 1871 was the same thing as the possession of Act No. XIV. of 1859, and included constructive possession. The then Chief Justice of this Court, Sir Robert Stuart, in our opinion was right in differing from the rest of the Full Bench. He held that the purchaser does not take actual possession of the properties sold to him until he takes physical and tangible possession. The next matter to which we have to refer is that when Act XV. of 1877 was passed, the Legislature, still determined, in our opinion, to exclude constructive possession from the possession from which limitation should run under art. The next matter to which we have to refer is that when Act XV. of 1877 was passed, the Legislature, still determined, in our opinion, to exclude constructive possession from the possession from which limitation should run under art. 10, used the term physical possession/ and they added a different terminus of limitation in respect of property which did not admit of physical possession. As we have said, two of the villages here were of pure zemindari tenure—that is, they were villages in which the zemindars got no shares allotted to them by metes and bounds, but held fractional shares, in respect of which fractional shares they received a proportionate amount of the profits of the village. It is said that the mortgagor used to receive direct from the tenants of the zemindari body his proportion of the rents payable by them. That, in our opinion, does not alter the case. In Unkar Das v. Narain (( 1881) Ind. L. R. 4 Allah. 24.) it was held that a share in an undivided zemindari mehal was not susceptible of physical possession in the sense of art. 10 of the 2nd schedule to Act No. XV. of 1877. We adhere to that decision. The Legislature meant some limitation of the term possession by the use of the term physical. In our opinion, for instance, the owner of a house who has let the house to a, tenant cannot be said to be in physical possession of that house so long as the tenancy subsists and his tenant remains in exclusive possession of the demised premises. In such a case the owner has parted with the physical possession to his tenant for the period of his tenancy, and the tenant alone is the person who has physical possession. It appears to us that it would be straining the English language and going contrary to the obvious intention of the Legislature to hold otherwise. In this particular case art. 10 cannot apply, because the whole of the property sold is not capable of physical possession within the meaning of that article, and no instrument of sale has been registered. The result is that, art. 10 not applying, art. 120 must apply in this case. As art. 120 applies, we have got to see when the right to sue accrued to the pre-emptor. The result is that, art. 10 not applying, art. 120 must apply in this case. As art. 120 applies, we have got to see when the right to sue accrued to the pre-emptor. That point is concluded by the Full Bench ruling of this Court in Ali Abbas v. Kalka Prasad (1), which, in our opinion, was rightly decided, but which must always be regarded as deciding merely the point referred to the Full Bench, and not the question of limitation. This suit was barred by limitation when brought, and we dismissed this appeal with costs, which will include fees on the higher scale." Ross, for the appellant, contended that the suit was not barred by limitation, for that art. 10 applied. The property was capable of physical possession within the meaning of that article, and, as no possession has yet been taken, limitation has not begun to run. He referred to Unkar Das v. Narain (Ind. L. R. 4 Allah. 24.), which went so far as to say that a share in an undivided mehal is not susceptible of physical possession, and that limitation ran from the date of registration of the instrument of sale see also Bholi v. Imam Ali, (( 1881) Ind. L. R. 4 Allah.179.) The Full Bench case of Ali Abbas v. Kalka Prasad (Ind. L. R. 14 Allah. 405.) did not decide whether an undivided share is capable of physical possession, but ruled that the title of a conditional vendee became absolute on the expiration of the year of grace, and that limitation ran from that date see also Starlings Limitation Act in his comments on art. 10, and Forbes v. Ameeroonissa Begum. (( 1865) 10 Moores Ind. Ap. 340, see especially p.349.) If art. 10 does not apply art. 144 is applicable, which provides a period of twelve years ; and even if the case is held to fall within art. 120, still it was contended that the right of the pre-emptor to sue did not accrue and time did not begin to run until the final decree for possession was passed in favour of the mortgagee, the earliest decree for which was on August 4, 1891, less than three years from the date of suit. The respondents did not appear. The judgment of their Lordships was delivered by LORD ROBERTSON. The respondents did not appear. The judgment of their Lordships was delivered by LORD ROBERTSON. The sole question in this appeal is whether the suit, brought to declare a right of. preemption against the heir of a mortgagee, by conditional sale, who has foreclosed, is time barred, six yearshaving elapsed from the expiry of the year of grace after foreclosure; and the main controversy comes to be whether the 120th article of the 2nd schedule to the Limitation Act of 1877 applies to the case. Admittedly it does apply, unless either art. 10 or art 144 applies; and the real question is whether the appellant is right in affirming that the case falls under art. 10. There is, however, a subordinate question as to the period from which the six years run, assuming art. 120 to apply. The appellant is the wife of the nominal respondent Mansur Ali Khan, and she derives from him by gift a 6 pie share of his original interest in the villages now in dispute, the remainder of his interest being still vested in him. This Mansur Ali Khan and his brother Zahur Ali Khan at the date of the mortgage owned two-thirds of each of the villages of Pathringwa, Senduria, and Pipra Kalan, each brother holding shares of 5 annas 4 pies; and the two owned the whole of the village of Parsa, each brother holding an 8 anna shafe. The brothers were Mahomedans. Two of the villages were of pure zemindari tenure, the other were imperfect pattidari. On March 14, 1868, Zahur Ali Khan, in consideration of money lent, executed a deed of conditional sale to Saju Parshad, now deceased (whose heir is the respondent Bhagwati Parshad), of the whole of his shares in the four villages. It is unnecessary to set out this sale deed as nothing turns on its particular terms. No change of possession took place on the execution of the mortgage. Zahur Ali Khan died in January, 1876. In 1880, the mortgagee having also died, the respondent Bhagwati Parshad, his heir, foreclosed (by proceedings taken under Regulation XVII. of 1806), and the money was not paid within the year of grace, which expired on January 20, 1881. Some litigation ensued which is immaterial to the present question, and the rehearsal of which would only obscure the narrative. In 1880, the mortgagee having also died, the respondent Bhagwati Parshad, his heir, foreclosed (by proceedings taken under Regulation XVII. of 1806), and the money was not paid within the year of grace, which expired on January 20, 1881. Some litigation ensued which is immaterial to the present question, and the rehearsal of which would only obscure the narrative. In 1890 Bhagwati sued in the Court of the Subordinate Judge of Gorakhpur that he might " be put in proprietary possession of a 5 anna 4 pie share in each of Senduria, Pathringwa, and Pipra Kalan, and an 8 anna share of Mauza Parsa" " by ejecting and dispossessing the defendants or any of them who may be found in possession thereof and by declaring their right of ownership to be extinct/ and he obtained a decree which on appeal was affirmed by the High Court on July 6, 1893. The terms of the decree were, inter alia, "it is decreed and ordered that the claim of the plaintiff for possession of the shares of the villages mentioned in the relief " " be decreed." On November 27, 1893, Bhagwati executed a dakhinama, declaring that under the order of the judge " Munshi Jamiat Yai, the Amin of the Court, has given formal possession to me the decree-holder through my karinda (agent) over the shares of the villages detailed below," and the names of the villages and. number of the shares are duly set out. Mutation of names was also obtained in respect to the shares. Bhagwati then attempted to take physical possession of the estate, but he was successfully resisted by Mansur Ali Khan. Bhagwati, therefore, never had possession at all, unless the possession of Mansur Ali Khan, or the posses sion of the tenants, or his own "formal possession" will suffice; and it has not been suggested that his legal rights entitled him to anything more, in the way of possession, than he actually obtained unless and until he had enforced a partition, which in fact never took place. On July 4, 1894, the appellant filed her plaint. On July 4, 1894, the appellant filed her plaint. She narrated the conditional sale, the foreclosure, the decree of possession, and the " delivery of possession." She described herself as a near co-sharer of the vendor (in the conditional sale), and asserted that under the condition of the wajib-ul-arz the usage and right of pre-emption under the Mahomedan law she possesses a preferential right of purchase. Her prayer, so far as material, was that a decree awarding possession over the mortgaged shares of the villages might be passed in her favour on the basis of pre-emption, the condition of the wajib-ul-arz, the custom of the village, and the right of pre-emption under the Mahomedan law, by setting aside all the proceedings and the foreclosure decree on payment of Rs. 35,000, the consideration money, or of any other sum which might be determined by the Court. A written statement was filed by the respondent Bhagwati, in which various grounds of defence were stated— inter alia, limitation was pleaded, the validity of the gift to the appellant which constitutes her title to claim pre-emption was challenged, and her alleged right of pre-emption was denied. Issues were settled on September 19, 1894, but of those the only one which has been tried and decided and requires present notice is that of limitation. For the purposes of the present question, therefore, the appellant is to be assumed to have had a right of pre-emption, and the question is whether she had lost it by limitation before her plaint was filed. On November 28, 1894, the Subordinate Judge dismissed the suit on the ground of limitation, with costs. He held that the title of the conditional vendee became absolute on the expiration of the year of grace, and that the six years period of limitation prescribed by art. 120, Sched. II., of the Limitation Act begins to run against the pre-emptor from, the expiration of the year of grace. The appellant appealed to the High Court, who, on November 12, 1896, remanded the case for the trial of the following issue " Does the property in suit admit of physical possession ? " Evidence was taken, and the Subordinate Judge, on January 11, 1897, held that the property in suit does not admit of physical possession. The appellant appealed to the High Court, who, on November 12, 1896, remanded the case for the trial of the following issue " Does the property in suit admit of physical possession ? " Evidence was taken, and the Subordinate Judge, on January 11, 1897, held that the property in suit does not admit of physical possession. On appeal the High Court, on Feb ruary 16, 1898, dismissed the appeal with costs ; and it is against that judgment that the present appeal has been taken. The view of both Courts is that the appellants claim falls under the 120th article of the 2nd schedule of the Limitation Act, 1877, which is the final and residuary article including all suits not specially provided for, and fixing for all such suits the limitation of six years. It is for the appellant to shew which other article fits her claim she points first to the 10th article— to this article most of the discussion has been directed, and this occasioned the remand. The 10th article purports to apply to suits " to enforce a claim of pre-emption whether the right is founded on law or general usage or on special contract." One year is the period of limitation; and the time from which this period begins is "When the purchaser takes, under the sale sought to be impeached, physical possession of the whole of the property sold, or, where the subject of the sale does not admit of physical possession when the instrument of sale has been registered." The interest of the appellant to maintain the application of the 10th article is that, if the subject is susceptible of possession, then possession has yet to be taken, for none has as yet been had. The "property sold," "the subject of the sale," was in this case the 5 anna 4 pie share of each of the three villages and the 8 anna share of the fourth. Various questions of more or less subtlety suggest themselves as to the relation of the holder of such a right to the possession of the estate. All those questions are, however, superseded by the extreme absoluteness of the language of the 10th article of the Limitation Act. What has to be considered is, as the High Court accurately formulated the question, Does the property admit of physical possession ? All those questions are, however, superseded by the extreme absoluteness of the language of the 10th article of the Limitation Act. What has to be considered is, as the High Court accurately formulated the question, Does the property admit of physical possession ? The word" physical" is of itself a strong word, highly restrictive of the kind of possession indicated; and when it is found, as is pointed out by the High Court, that the Legislature has in successive enactments about the limitation of such suits gone on strengthening the language used, first, in 1859 prescribing "possession," then in 1871 requiring "actual possession," and finally in 1877 substituting the word "physical" for " actual," it is seen that that word has been very deliberately chosen and for a restrictive purpose. Their Lordships are of opinion that the High Court are right in the conclusion they have stated. Their Lordships consider that the expression used by Stuart C.J. in regard to the words " actual possession " is applicable with still more certainty to the words "physical possession” and that what is meant is a "personal and immediate " possession. This being the sound construction of the 10th article of the 2nd schedule to the Act of 1877, the facts completely fail the appellant, for the mortgagees heir had no semblance of physical possession in the true and natural sense of the term. All that he had directly was the " formal possession " constituted by the dakhilnama, which was ceremonial, and on paper. The physical possession of the villages was with others, and Bhagwati, not having enforced "a partition, could not get physical possession of any definite portion of those lands, and had no right to oust the existing occupiers. Accordingly their Lordships consider that the case does not come within the 10th article in so far as possession is concerned. This being so, the alternative stated in the third column relating to registration arises; but the appellant did not argue upon it, and no suggestion has been made that it affects the argument. The 10th article accordingly disappears from the case. The alternative suggestion that art. 144 applies cannot be supported. This being so, the alternative stated in the third column relating to registration arises; but the appellant did not argue upon it, and no suggestion has been made that it affects the argument. The 10th article accordingly disappears from the case. The alternative suggestion that art. 144 applies cannot be supported. It applies to suits "for possession of immovable property or any interest therein not hereby otherwise specially provided for," and the twelve years of limitation are to begin " when the possession of the defendant becomes adverse to the plaintiff." Now it is perfectly clear that claims of pre-emption are specially considered in art. 10, and although this particular claim of pre-emption does not (for the reasons already stated) fall within it, that does not affect the construction of art. 144 as illustrated by art. 10. A claim to enforce a right of preemption is, as art. 10 shews, a claim impeaching anothers right; and its primary object is to set aside the competing right. The circumstance that this plaint has inverted the proper order and, instead of first asking the setting aside and then asking possession as the consequence, has asked for possession " by setting aside" cannot alter the nature of the action. If neither art. 10 nor art. 144 applies, then admittedly the 120th article does ; and the only remaining question is at what date does the period of six years begin ; or, to apply the words of the Act, when did the right to sue accrue to the appellant ? It seems to their Lordships to be clear that the expiry of the year of grace is the time at which the preemptors right arises. The mortgagees right of property had then become mature, and the mere fact that he had not enforced that right by a suit of possession does not affect the question. Their Lordships are satisfied of the soundness of the decision of the High Court of the North West Provinces in All Abbas v. Kalka Prasad. Their Lordships will humbly advise His Majesty that the appeal ought to be dismissed.