Mahadeva Iyer Venkitasubramonia Iyer vs Rudran Narayanan

Govinda Pillai, J.—The 1st Defendant is the revision Petitioner. The petition is to revise the finding on issue No. 5 recorded by the lower Court. The suit was for redemption of two mortgages, Exs. A and B of 7-8-1091 relating to the plaint properties. The plaint properties which, are S. No. 2236 which has an area of 3 acres and 72 cents and S. No. 2237 which has an area of 3 acres and 21 cents belonged in equal shares to the two branches of "Athiyara Matom".

The 1st Plaintiff is the manager of one of the branches known by the name of "Athiyara Matom" in Trivandrum, and the 3rd Plaintiff is the manager of the other branch known by the name of "Kolloor Athiyara Matom". By an arrangement between these two Matoms, the eastern half of the property which is described in the plaint as A schedule was allotted to the 1st Plaintiff''s branch, and the remaining portion to the 3rd Plaintiff''s branch. Thus the A schedule property with an extent of 3 acres and 47 cents formed the eastern portion of S. No. 2236.

The remaining 25 cents in that survey number and the whole of S. No. 2237 went to the share of the 3rd Plaintiff''s Matom. Exhibits A and B related to the eastern half, and it was mortgaged for 8000 fanams. They had been executed in renewal of a previous mortgage of 1080. On 18-5-1120, a Melotti had been executed from the 1st Plaintiff''s branch in favour of one Krishnan Govindan Potti authorising him to redeem the mortgages of 1091. The 2nd Plaintiff has taken an assignment of that right. In order that there might not be any dispute as to the property covered by Exs. A and B the other heirs of the 3rd Plaintiff also had been made parties.

A portion of the property belonging to the 3rd Plaintiff is now being enjoyed by the 7th Defendant. The improvements in the plaint. A schedule property will come to: 7000 fanams. The martgagee had committed waste on the property and the Plaintiffs wanted the same to be ascertained and set off. They also claimed the ''Karam'' and ''Michavaram'' provided for in the document.

Defendants 1 and 7 contested the suit. The 1st Defendant denied the allegation that he was in possession under the mortgage deeds of 1091. His case was that his predecessor-in-interest was one Vellayambalam Narayana Iyer who obtained this property on 8-11-1102 in respect of the eastern, half for Rs. 9900 from the father of Defendants 2 to 6 and his brOrs. . Exhibit I is that mortgage. He had also taken subsequently a sale deed Ex. II on 20-2-1120 for Rs. 11400/-.

The western one-half also had been mortgaged to Narayana Iyer on 9-5-1102 for Rs. 3250, and the equity of redemption over the same was sub-sequently purchased by him in Court auction in execution of the decree in O.S. No. 559 of 1108 of the Trivandrum Munsiff''s Court. The mort-; gage deeds of 1102 and the sale deed Ex. II of 1120 were executed on the basis that the executants were the full owners of the properties.

The 1st Defendant further stated that on further enquiry he had understood that the executants had obtained only a mortgage right in 109 and that was in renewal of prior mortgages dating back to 1029, that his predecessor-in-interest was not aware of the limited right of the executants: over the property, that he was however willing to be redeemed provided he was paid the amount due under the mortgage of 1102 and the further charges on the property on the basis of the lease deed taken by the mortgagor along with the value of improvements effected after 1029.

He contended that the right to redeem the mortgage of 1091 was barred by limitation under Article 122, Limitation Act (Travancore). He wanted a decree as contended for by him. The 7th Defendant stated that he was an unnecessary party as the property in his possession was not the subject-matter in this suit. Issues had been raised and the fifth issue was "whether the suit was barred by limitation as contended by the 1st Defendant".

The Court below, after hearing the parties and after considering the documents produced before it, held that Article 122, Limitation Act would not apply to the facts in the present case. It is this finding that is sought to be revised.

When this petition came up before a Single Bench, it was referred to a Division Bench as the question involved was an important one. Article 122, Limitation Act (Tr.) provided a period off twelve years to recover possession of immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration. Unlike the corresponding Article 134 of the Indian Act, the time from which the period begins to run is mentioned in third column as the date of the transfer whereas, under the Indian Act which would govern us hereafter, the period begins to run only when the transfer becomes known to the Plaintiff.

The original provision in the Indian Act was similar to that in the Travancore Act. It was (SIC) an amendment of 1929 that the words "from the date of transfer" were replaced by the expression "from the date of knowledge". The article, as (SIC) stood before the amendment of 1929, had come (SIC) for interpretation before a Full. Bench of the Madras High Court in - ''Seeti Kutti v. Pathumma'' AIR 1919 Mad 972 (A).

The majority view was that Article 134 would not apply to a transfer from a trustee or mortgagee where possession was not taken by the transferee. A further opinion was expressed that the article would however apply to cases where possession was obtained subsequently to the transfer; and where possession was taken sometime after the date of the transaction purporting to transfer the right to take possession, time ran against the person suing for possession from the date when possession was actually taken by the transferee.

This latter opinion could be made applicable only if the date of transfer in the third column was taken to mean the date of the transfer of possession and not the date on which the conveyance was executed. The first column of the article described the nature of the suit to be filed, and that was to recover possession of the property. It necessarily indicates that the possession is to be recovered from the transferee so that possession with the transferee is contemplated when the several columns in the article are read together.

It was pointed out in - ''Seeti Kutti v. Pathumma (A)'', that it was always necessary in matters of this kind to read columns 1 and 3 together to understand the real intention of the legislature. Thus to make Article 122 apply, it was necessary that actual possession should have been transferred to the transferee along with the deed of conveyance. This majority view was accepted and followed in a later decision of the same Court In Arumugam Pillai and Another Vs. Khazi Mohideen Sheriff Sahib and Another,

That was further followed by Abdur Rahman J. in Krishnaswami Aiyar Vs. Sabarathnam Chetti and Others, and Leach C.J., and Kunhi Raman J. in - ''Gokuldoss and Co. v. Lakshminarasimhalu'' AIR 1940 Mad 920 (D). We follow this view of the Madras High Court and hold that unless actual possession is given to the transferee on the date of the transfer, Article 122 cannot apply to the transaction, for this article contains a stringent provision of law, and unless all the formalities are observed, the article cannot be made applicable.

The article, as it originally stood, provided for a purchase from the mortgagee by a third party. Thus, the word "purchase" was substituted by the word "transfer". So it was argued, that the transfer might also denote a transfer short of conveying absolute title. But in such cases, as pointed out in - ''Skinner v. Naunihal Singh'' AIR 1929 P.C. 158 (E), the transfer of property mortgaged contemplated by Article 134 (Indian) was something other than an express transfer of the original mortgage, and it contemplated a transfer by mortgagee purporting to transfer a larger interest than that given by the mortgage, or at any rate, in interest unencumbered by a mortgage.

Thus, if there were not appropriate words in the transfer deed to indicate that the mortgagee was assuming a right more than that obtained by him under the deed of mortgage, this article could not be relied on by the transferee against the party suing for possession.

In this case, the mortgage deed Ex. I of 1102 itself shows that the mortgagee was not given tual (SIC) possession. It stated that the property was taken back on lease by the mortgagor. Ex. I included also Anr. property belonging to the executants. This document does not say how the plaint (SIC) property was obtained by the parties. But there (SIC) an indiction to show that they were holding his (SIC) property on mortgage. In Ex. A in their our, the tenure is described as ''Athiyara Matom (SIC) Thanathu'' whereas in Ex. I, the tenure is ribed (SIC) as "Athiyara Matom Vaka Otti".

It was argued, that by such description, the executants were indicating the tenure under which, they were holding the properties. This is also a circumstance against the mortgagee whose interest now vests in the first Defendant. We agree with, the Court below in holding that Article 122 Limitation Act (Tr.) will not apply to the facts of this case. The finding of the Court below is confirmed and this revision petition is dismissed with costs.

Sankaran, J.

I agree to the order proposed by my learned; Brother and wish to add a few words about the- scope and applicability of Article 122 Travancore Limitation Act which has come up for construction.

Article 122, Travancore Limitation Act is exactly similar to Article 134, Indian Limitations Act as stood prior to the amendment in the year 1929 when the third column in that Article was-modified by substituting the words "when the transfer becomes known to the Plaintiff" for the words "the date of transfer" in that column which, mentions the starting point of the period of limitation prescribed under the Article.

Article 122 of the Travancore Act prescribed the period of limitation as 12 years for a suit to recover possession of immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration the said period being computed from the date of the transfer. Since the language used in the Article is clear and definite and there is no ambiguity about it, the Article has to be literally and strictly I construed and given effect to.

In this case the scope of this Article as applicable to a suit for recovery of possession of immovable property mortgaged and afterwards transferred by the mortgagee for valuable consideration, arises directly for consideration. This is an Article which reduces or restricts the normal period, available for a mortgagor to recover or redeem the property mortgaged by him. The period available for such a suit is 60 years from the time when the right to redeem or to recover possession accrues, under Article 148, Indian Limitation Act, the corresponding period under Article 136, Travancore Limitation Act being 50 years.

Thus Article 122 of the Travancore Act is in the nature of an exception to Article 136 and is intended to afford protection to the person who claims to be in possession of the property under a transfer independent of the rights under the mortgage ire favour of his transferor. It is the right which he acquires by prescription on account of such an independent possession claimed by him as against the real owner of the property that is meant to be protected by this Article.

This is an additional reason why the Article should not be liberally construed so as to cause greater prejudice to the rights of the mortgagor and to enlarge the rights of the transferee from the mortgagee. The nature of the suit to which this Article can be made applicable is clearly indicated in column 1 of the Article. The suit must necessarily be a suit to recover possession of the immovable property mortgaged (properties bequeathed in trust being left out of account in the present discussion) and afterwards transferred by the mortgagee for a valuable consideration.

It is obvious that the suit contemplated is one for recovery of possession of such property from the transferee mentioned in the Article. Such a suit can be instituted against the transferee, only if he has obtained possession of the property as per the transfer in question. He may obtain such possession on the date of the transfer itself or sometime thereafter or may not obtain any possession at all. If he has not obtained possession there cannot be any suit for recovery of possession from him.

In the other two contigencies a suit for recovery of possession can be instituted against the transferee So far as Article 122 is concerned the starting point of limitation for such a suit is expressly mentioned in column 3 as the "date of the transfer". Strictly and literally construing the expression "the date of the transfer", it can only mean the date of the conveyance or deed of ''transfer. It has no reference to the possession following such transfer. There is no warrant for construing the expression as meaning the date of transfer of possession of the property.

Such a construction will in effect be an amendment of that Article by adding more words to the expression as used by the Legislature in the third, column of the Article. Taking the expression as it stands, it is clear that the period of 12 years prescribed by the Article must be computed from the date of the transfer i.e., the date of the document evidencing the conveyance or transfer under which the title dealt with by the transferor passes on to the transferee.

But the difficulty comes in where the suit as contemplated by column I of the Article may not be possible to be instituted because the cause of action for such a suit may not have arisen. As already pointed out, the cause of action for a suit for recovery of possession will arise only when the transferee gets possession of the property. It is possible that such a cause of action may not arise for a period of over 12 years subsequent to the date of the deed of transfer.

Can it be said that in such a case the right of the owner of the property to recover possession of the same has become barred by limitation under this Article? It cannot be. A cause of action cannot be said to have become barred by lapse of time even before it has accrued. The period as prescribed by this Article will not obviously begin to run before the cause of action for the suit contemplated comes into existence. There is nothing in the expressions used in the Article to compel such an absurd construction being put upon it.

It may be that it is not possible to make the Article applicable to all the suits contemplated "by column 1 of the Article. No undue importance can be given either to column 1 or to column 3 in the attempt to see if a particular suit comes under this Article. Both the columns are equally important and the Article can govern only suits, to which both these columns can be made applicable. The ruling in - ''Rungiah Gounden and Co. v. Nanjappa Row'' AIR 23 Mad 780 (F), is in support of this position.'' In that case it was held that.

If the various starting points fixed in the third column of any article from which the period of limitation is to be reckoned do not cover all cases falling within the class of suits or applications described in the first column, it will be impossible to hold that the article in question is exhaustive of the class.

Since the suit contemplated by column 1 of Article 122 is a suit for recovery of possession from a transferee from the mortgagee of the property and since the period of limitation for such a suit is to be reckoned from the date of the transfer, " it is clear that the Article can apply only to cases where the transferee obtained possession also on the date of the transfer itself. Cases where the transferee did not obtain such possession on the date of the transfer, will not come under the Article.

This is the view taken by the majority in the Full Bench decision in - ''AIR 1919 Mad 972 (A) where the corresponding Article 134 of the Indian Limitation Act came up for construction. The other Article under which a suit for recovery possession of the property may be resisted by'' transferee who obtained possession of the some time subsequent to the date of the transfer is Article 132 corresponding to Article 144 of the India Act, the period of 12 years prescribed under that Article being computed from the time when the possession of the Defendant becomes adverse to the Plaintiff.

The next aspect to be considered is as to the nature of the possession which the transferee must have obtained in order to enable him to claim the benefit of Article 122. It has already been found that in order to attract that Article the transferee must obtain possession of the property on the date of the transfer. It cannot be said that physical possession alone will be deemed to be possession for the purpose of this Article. All that is required is the possession in law or, in other words the right to immediate possession must have bi given under the transfer.

If the deed of transfer is a usufructuary mortgage and if the transferor after executing such a mortgage takes the property back on lease from the transferee-mortgagee, it has to be taken the transferee obtained possession of the property under the transfer. The subsequent possession of the transferor as the lessee of the property is only possession under the transferee. The mere fact that the transferee is not continuing his direct possession of the property cannot be taken to mean that he did not get possession under the mortgage in his favour. Such continued physical possession is not essential for bringing the case under Article 122.

This is the view taken by Srinivasa Iyengar J., in - ''AIR 1919 Mad 972 (A). I am in respectful agreement with that view. Exhibit I the deed of transfer relied on by the contesting Defendant in the present suit, does not satisfy even the conditions mentioned above regarding the passing of possession. It does not show that possession was, given or intended to be given under the document. The document is a composite one, embodying in it a mortgage and a lease back in respect of the same property.

If legal possession at least was intended to be given under the mortgage, the lease arrangement immediately following it would have provided for the mortgagee-lessor to recover possession of the property from the mortgagor-lessee, on the termination of the lease. But there is no provision or stipulation to that effect in Ex. I.

On the other hand, the express provision in his favour is only for the recovery of the rent that may accrue due, thereby indicating that right to possession was not conferred on the mortgagee and that the entire transaction was treated as a Simple mortgage or hypothecation only. Since actual Possession was not given or intended to be given under the transfer evidenced by Ex. I, it is clear that Article 122 is not applicable to this transaction.

From the wording of column 1 of Art (SIC) it is clear that the transfer contemplated by it is not the transfer of the mortgagee''s interest as such in the property in question. The mortgagee will be acting within his rights and (SIC) sistent (SIC) with the mortgage in his favour (SIC) merely transfers his mortgage right as (SIC) or portion of it. In such cases the position of the transferee will be that of a mere assignee or sub mortgagee holding the property in full recognition of the title of the original mortgagor.

The mortgagor''s suit for recovery of possession of the property from such transferee will be governed by Article 136, Travancore Limitation Act, corresponding to Article 148, Indian Limitation Act as in the case of such suits when brought against the Original mortgagee or his heirs. A transfer of the mortgaged property by the mortgagee in favour s of a third party for valuable consideration will be attracted by Article 122 only when such transfer is made in denial or in defiance of the mortgagor''s title to the property. It is not necessary that the deed of transfer should contain a denial of the mortgagor''s title in express terms. It is enough if such denial is apparent at least by implication.

The transferor must however be purporting to transfer a right, title or interest independent of and unconnected with the mortgage in his favour. Then alone can it be said that the transferee from the mortgagee is prescribing against the mortgagor who is the real owner of the property. The essential feature of a transfer coming under Article 122 is the commencement of such prescriptive right in favour of the transferee for valuable consideration from the mortgagee. This position is now well settled.

In dealing with Article 134, Indian Limitation Act It has been pointed out by the Judicial Committee of the Privy Council in - ''AIR 1929 PC 158 (E)'', that:

The Article contemplates a transfer by the mortgagee purporting to transfer a larger interest than that given by the mortgage or at any rate an interest unencumbered by a mortgage.

This is the view consistently taken on the question by the several High Courts in India. The question of the applicability of Article 134 came up for consideration by a Pull Bench of the Allahabad-High Court in - ''Mt. Chunai v. Ram Prasad'' AIR All 167 (G) and there also it was ruled that to attract Article 134 the transfer by the mortgagee must be in denial of the mortgagor''s title and that the transfer must be for valuable consideration.

When a suit for redemption or for recovery of possession of the property is brought by the mortgagor within the normal period available to him, (SIC) transferee from the mortgagee cannot successfully resist the suit by merely contending that the (SIC)ginal mortgage in favour of his transferor is not acknowledged or made mention of in the transfer (SIC) executed by such mortgagee. If the deed (SIC) transfer is capable of a construction which is (SIC)istent with the subsistence of the mortgagor''s (SIC) his suit for redemption and recovery of possession must succeed.

It is for the transferee-Defendant to make out (SIC)clearly and conclusively mat the transfer in his your(SIC) by the mortgagee was for valuable consideration and in denial of or at least absolutely independent of and unconnected with the rights the mortgagee has acquired under the original mortgage in his favour Or in other words the transfer by the mortgagee purported to convey is independent title of his own. Great emphasis was laid on this aspect of the matter by the privy Council in - ''Radhanath Doss v. Gisbome (SIC) 14 Moo Ind App 1 (PC) (H) while dealing (SIC)with a similar provision contained in the Limitation Act, Act XXV of 1859. The following passage (SIC) at p. 15 of that volume.

But their Lordships cannot fail to observe, that the provisions of this section are of an extremely stringent kind. They take away and cut down the title, which ''ex hypothesi'' is a good title of a ''cestui que'' trust, or of a person who has deposited, pawned, or mortgaged property; they cut down that title as regards the number of years that the persons would have had a right to assert it; from a very great length of time, sixty years, they cut it down to 12 years. It is, therefore, only proper that any person claiming the benefit of this section should clearly and distinctly show that he fills the position of the person contemplated by this section, as a person who ought to be protected.

This ruling was reiterated and affirmed by the Judicial Committee of the Privy Council in - ''Juggernath Sahoo v. Syed Shah Mahomed Hossien'' 2 Ind App 43(PC) (I). On an examination of Ex. I in the light of these principles, it cannot be said that so far as the plaint properties are concerned the mortgagee was transferring under Ex. I anything in excess of the rights which he had acquired under the mortgage deed Ex. A.

The mere assertion in Ex. I that the executant had absolute right over the properties dealt with under it, does not necessarily mean that he was claiming a right in respect of the plaint properties in excess of his mortgage right. It is also seen that the document Ex. I related to other items also, over which the executant had full title. The general assertion of title as contained in the document was made in respect of these two sets of properties, but there is internal evidence in Ex. I itself to show that the executant had only a mortgage right over the plaint items and such right alone was being conveyed under this transfer.

In the mortgage deed Ex. A in favour of the executant of Ex. I these properties were described as ''Athiara Matom vaka thanathu'' indicating that the mortgagor was the absolute owner of these properties. In describing these items which were obtained on ''otti'' or mortgage under Ex. A by the executant of Ex. I, the properties'' are described as ''Athiara Matom voka otti''. In view of such a conscious distinction made in describing the selfsame properties in Exs. A and I, it cannot be said that the description as ''Athiara Matom vaka otti'', in Ex. I denotes only the tenure of the property.

On the other hand, the inference is irresistible that such a description was consciously made to indicate that the executant of Ex. I had only an ''otti'' or mortgage right over the properties as acquired from ''Athiara Matom''. Such being the nature of the transfer under Ex. I there is no force or substance in the plea that the transfer, in question is hit by Article 122, Limitation Act and that the present suit is barred by limitation. The lower Court was perfectly right In overruling such a plea and in finding issue No. 5 against the Defendant and in favour of the Plaintiff.