Veeraswami Mandiri vs K. Manicka Mudaliar and Others

M. Natesan, J.—This Second Appeal has been filed by the 2nd defendant in a suit for redemption of a possessory mortgage of the suit

property made by the plaintiff along with his brother Venkataswami Mudaliar in favour of the 3rd defendant in the suit, and for partition and

separate possession of a half share in the suit property. The trial Court dismissed the suit holding that the contesting defendants in the suit have

perfected their title by adverse possession against the plaintiff, but on appeal, the learned Subordinate Judge has overruled the defence of limitation

and decreed the plaintiff''s claim for a half share in the suit property.

A brief survey of the salient facts and findings in the case is necessary for appreciating the respective contentions of the parties on the question of

limitation, the only question for consideration. The suit property, dry land of an extent of 3 acres 20 cents, in North Virinchipuram village, North

Arcot District, belonged to the plaintiff and his elder brother Venkataswami Mudaliar aforesaid. Under Exhibit B-3 dated 9th February 1934, the

two brothers usufructuarily mortgaged the property in favour of Subramania Mudaliar, 3rd defendant in the suit for a sum of Rs. 400.

Venkataswami Mudaliar was indebted to one Muthuvelu Pillai under a promissory note, and Muthuvelu Pillai filed a Small Cause Suit, S.C. No.

533 of 1935, on the file of the District Munsif''s Court, Vellore. In execution of the decree thereon which had been transferred to the original side

Muthuvelu Pillai attached the entirety of the suit property and purchased the same in Court auction. Exhibit B-l, dated 25th September 1936, is the

sale certificate. It is seen from the sale certificate that the property had been sold subject to two agricultural loans of Rs. 150 each and the suit

usufructuary mortgage. Muthuvelu Pillai having taken formal delivery of the suit property through Court on 6th November, 1936 discharged the

usufructuary mortgage debt due to the 3rd defendant and redeemed the mortgage on 9th November 1936. Pursuant to the redemption which was

on 9th November, 1936 he entered on possession of the property. The deed of mortgage contains the relevant endorsement of discharge under

date 9th November 1936. There is also documentary evidence of actual possession and enjoyment of the suit property by Muthuvelu Pillai, till he

sold the property to the 1st defendant in the suit and her sister one Rajammal under Exhibit B-11 dated 24th January, 1939. The 2nd defendant

purchased the half share of Rajammal in the property under Exhibits B-12, dated 19th November, 1959 and B-13, dated 21st February, 1960,

for a total consideration of Rs. 6,000 and the Courts below find that after Muthuvelu Pillai, the 1st defendant and Rajammal and after her, the 2nd

defendant, had possession and enjoyment of the suit property in their own right as absolute owners. In fact, under Exhibit B-9, dated 13th April,

1942 the 1st defendant usufructuarily mortgaged the property in favour of one Abdul Azeez Sahib. The trial Court has noticed that the evidence of

D.Ws. 1 and 2, that is, Muthuvelu Pillai and the 2nd defendant, to the effect that Muthuvelu Pillai and his successors-in-title have been in

possession and enjoyment of the suit property in their own right as absolute owners from 9th November, 1936, the date of endorsement of

discharge, Exhibit B-4, has not at all been challenged in cross-examination in any manner whatsoever by the plaintiff. It is observed by the Courts

below, that the plaintiff has unequivocally admitted in evidence that he knew fully about Muthuvelu Pillai''s possession of the suit property from the

date of his purchase in Court-auction and the possession and enjoyment of the property by the transferees from Muthuvelu Pillai, namely, the first

defendant and her sister since 1939.

Another fact may be mentioned here. While Muthuvelu Pillai was in possession of the suit property, there was an attempt at trespass on the suit

property by the plaintiff, his brother Venkataswami and his aunt Salammal and this led to a criminal complaint by Muthuvelu Pillai. The plaintiff

admits that on this complaint of Muthuvelu Pillai for trespass, each of them was fined Rs. 5. Also while it is seen that this Muthuvelu Pillai and

subsequently his transferees have been in possession and enjoyment of the entire property asserting absolute title in themselves, it is found by the

Courts below that under the Court-auction sale in execution of the decree against Venkataswami Mulaliar, the interests of the plaintiff did not pass

to the Court-auction purchaser. The suit was on a promissory note executed by Venkataswami Mudaliar and the plaint clearly established that the

promissory note debt was incurred by Venkataswami Mudaliar in his individual capacity. Muthuvelu Pillai had prayed only for a personal decree

against Venkataswami Mudaliar and in the circumstances only the right title and interest of Venkataswami Mudaliar in the suit property could pass

to the Court-auction purchaser Muthuvelu Pillai. The finding of the Courts below in this regard is that notwithstanding the fact that the decree-

holder had proceeded to bring the entirety of the property to sale and purported to purchase the entirety of the property, the Court-auction sale

was not binding on the plaintiff and it could not pass the interests of the plaintiff to Muthuvelu Pillai. Of course, Muthuvelu Pillai had taken

possession of the entirety of the property pursuant to the Court-sale and had on redemption entered into possession of the entirety of the suit

property.

On these facts, it is contended for the plaintiff that as he is not bound by the sale, his right of redemption is outstanding and he is entitled to

redeem and secure possession of his share in the property. It is said that though Muthuvelu Pillai at the Court-auction purchased the entire property

subject to the usfructuary mortgage, in law, he acquired only the interests of his brother Venkataswamy and stepping into his shoes, he became a

co-mortgagor with the plaintiff. He acquired no higher right by the auction purchase. As a co-mortgagor he was entitled to redeem and get

possession of the entire mortgaged property on 6th November, 1936, his possession was in accordance with law in the right of a redeeming co-

mortgagor and his possession could not be considered to be adverse to the plaintiff. His Court-auction purchase secured to him only the right, title

and interest of the judgment-debtor and nothing more, and his judgment-debtor had only the interests of a co-sharer in the equity of redemption.

The stand for the plaintiff to this extent is perfectly justified and correct. Equally the charge and conviction for criminal trespass against the plaintiff

his brother and aunt by itself cannot make the possession of Muthuvelu Pillai hostile to the plaintiff. The attempted trespass was in 1937 and

Muthuvelu Pillai''s possession was in accordance with law in the right of a co-mortgagor who had paid off the entire mortgage amount. Muthuvelu

Pillai was in the circumstances entitled to hold on to the property till he was paid as contribution the proportionate part of the mortgage debt and

the expenses of redemption by the non-redeeming co-mortgagor plaintiff. When Muthuvelu Pillai as a co-mortgagor redeemed the mortgage, the

mortgage as to his half share in the property was extinguished and as, to the share of the plaintiff, he stood in the shoes of the mortgagee he had

redeemed, vis-a-vis the co-mortgagor Muthuvelu Pillai stood subrogated to the rights of the mortgagee who was redeemed--See Sections 92 and

95 of the Transfer of Property Act. Learned Counsel contended that such being the character of Muthuvelu Pillai''s possession the case is

governed by Article 148 of the Indian Limitation Act and the plaintiff has 60 years from the date of the mortgage to redeem his half share in the suit

property. It was submitted that there has been no redemption by him and that his right of redemption had not been extinguished by any act of his or

by any decree of Court to bar him from suing for redemption.

Per contra, it was urged for the defendants that Muthuvelu Pillai and after him, his transferees have been openly and notoriously proclaiming

against the plaintiff, rights in the entirety of the suit property and that therefore they have prescribed title to the entirety of the suit property by

adverse possession. It is this argument that found acceptance at the hands of the learned District Munsif. The learned Subordinate Judge on appeal

accepted the contention on behalf of the plaintiff that the plaintiff as one of the mortgagors had 60 years to redeem and he cannot be forced to

redeem at an earlier date merely because Muthuvelu Pillai and his transferees were asserting rights putting forward adverse claims. The learned

Subordinate Judge was of the view that the plaintiff was not legally bound to sue for possession merely because adverse claim was put forward by

Muthuvelu Pillai and his transferees. Reilance was placed by the learned Subordinate Judge on the decision in Maramittath Theruvil

Moothachettiam Veetil Kelu Vs. Kuttiyil Machikandy Chekkara Cheppan and Others, , and this decision is now again pressed for the plaintiff,

observed in that case as below:

When a person who is not a mortgagor, under a mistaken claim, pays Off a mortgage debt, he cannot extinguish it : for he has no right to do so.

The only person who can extinguish a mortgage, is the person who is entitled to redeem that mortgage and merge the mortgage in his own rights of

mortgagor or mortgagee.

Learned Counsel for the plaintiff lays considerable stress on this observation. But I fail to see its application to the facts of the present case. That is

a case of a person in the bonafide belief that he was entitled to redeem, redeeming the mortgage. In that case it is observed that when a person

believes that he was entitled to redeem the mortgage either under the impression that he was a mortgagor or that he had some other right in the

property which would entitle him to redeem, on payment he would be entitled to the rights of the mortgagee by way of subrogation or a like

equitable principle. But on such payment the mortgage debt as such was not extinguished. It is also observed examining the question of adverse

possession by the person so redeeming, that the mere assertion by a person in possession of the property when the mortgagor had no immediate

right to possession, which was not coupled with some act definitely interfering with the rights of the mortgagor, would not amount to an ouster of

the mortgagor, that would force him to take some immediate action under pain of losing rights to the property by adverse possession. It was held in

that case that a mortgagor who had 60 years to redeem could not be forced to redeem at an earlier date, merely because someone was asserting

adverse claims to the property. It is said that the correct test applicable in these cases is whether the possession and acts of the person claiming

adversely can be referred to any legal right that he possessed. Submissions were made based on this decision and other decisions were also

referred to for contending that Muthuvelu Pillai and the transferees from him must be looked upon only as mortgagees.

The facts of this case are not so simple for the application of the decision in Maramittath Theruvil Moothachettiam Veetil Kelu Vs. Kuttiyil

Machikandy Chekkara Cheppan and Others, . It may be that if possession had continued in Muthuvelu Pillai, the plaintiff could rely on Article 148

of the Limitation Act and claim full 60 years, from the date of the mortgage. But here Muthuvelu Pillai had conveyed the entirety of the property, as

absolute owner, even in 1939 under Exhibit B-11, dated 24th January, 1939 in favour of Unnamalai Animal, the first defendant and her sister

Rajammal. Unnamalai Ammal and Rajammal had entered on the property as absolute owners and admittedly to the knowledge of the plaintiff they

have been asserting rights in the property as owners. The suit was filed only on 22nd November 1960. From 1939 the first defendant and her

sister have been enjoying the property as owners. After 20 years of enjoyment, Rajammal conveys her half share in the property under two sale

deeds, Exhibits B-12 and B-13, one in 1959 and another in 1960 to the present 2nd defendant. In my view whether Article 144 of the Limitation

Act could be availed of or not by the defendants, clearly Article 134 of the Indian Limitation Act will apply. Under Article 134 of the Limitation

Act, a period of 12 years is provided for a suit to recover possession of immovable property mortgaged and afterwards transferred by the

mortgagee for valuable consideration, the period commencing to run from the date when the transfer becomes known to the plaintiff. The decision

in Maramittath Theruvil Moothachettiam Veetil Kelu Vs. Kuttiyil Machikandy Chekkara Cheppan and Others, , distinguishes the case therein

under consideration from cases to which Article 134 is applicable. My attention was drawn by the learned Counsel for the plaintiff to the decision

in Karuppanan Servai v. Deivasigamania Pillai ILR (1954) Mad. 664 : (1954) 2 M.L.J. 12. This again does not help the plaintiff, but on the

contrary it is a decision directly in favour of the defendant. Learned Counsel for the plaintiff relied on the observations in that judgment to the effect:

The transfer by the mortgagee as owner does not operate as a discharge of the mortgage by the mortgagor and the transferee is entitled as against

the mortgagor at least to what his transferor was entitled. If he is then entitled as against the mortgagor to the rights of the original mortgagee, is he

not also subject to the obligations of his transferor in favour of the mortgagor? The real question in such cases is not what the transferee purported

to acquire, but what in fact he did ac-quire and if what he did acquire was only the interest of the mortgagee, he is liable under the law to be

deemed as a mortgagee and Article 148 will apply.

But proceeding, their Lordships have discussed the relative scope of Articles 134 and 148 and it is observed:

If the defendant is under liability to be redeemed under Article 148, he is also entitled to the protection afforded by Article 134.

The question now under consideration is whether the defendants could claim the benefit of Article 134 and whether the requirements of that Article

are satisfied. As pointed out in the said decision at page 20,

To understand the true scope of Article 134 it is necessary to read it along with Article 148. Article 148 provides a period of 60 years for

redemption of a mortgage and Article 134 cuts down that period to 12 years when there is a transfer by the mortgagee. Article 134 is, therefore,

an exception to Article 148. In both the Articles the same word ''mortgagee'' is used. It must clearly have the same meaning in both the Articles. If

''mortgagee'' in Article 148 should mean only the original mortgagee, then the present action for redemption of Exhibit P-l would not be

maintainable as against the defendant who is purchaser from Balaguru. But if ''mortgagee'' in Article 148 includes all persons who succeed to the

interest of the mortgagee, it must bear that meaning under Article 134 as well and the appellant will be entitled to its benefit. If the defendant is

under liability to be redeemed under Article 148, he is also entitled to the protection afforded by Article 134. Likewise, the right of a mortgagor to

redeem under Article 148 is subject to the bar enacted in Article 134 in favour of a transferee.

In that case while the Court-auction purchase by which Balaguru Naidu become entitled to the property was held not to confer the protection of

Article 134, the transfer under Exhibit D-14 by Balaguru which purported to convey the full title with land to the purchaser was held to be a

transfer within the meaning of Article 134, and a finding was called for whether the plaintiff or his predecessor-in-title who had instituted the suit for

redemption had knowledge of the conveyance by Balaguru and, if so, was it more than 12 years prior to the suit. It was held that the conveyance

in question which purported to transfer all the property absolutely and not a mere assignment of the mortgage would fall within the scope of Article

134 and on the finding received that the plaintiff and his predecessor-in-title had knowledge of the transfer more than 12 years prior to the

institution of the suit, the claim for redemption was dismissed.

If the plaintiff in this case would look upon Muthuvelu Pillai as in the position of a mortgagee and rely on Article 148, the defendants could well

plead, as held in the above decision, on the facts of the case, that the period provided under Article 148 was cut down by Article 134. The learned

Judges in the above case referred with approval to the observations of Seshagiri Ayyar, J., in Muthaya Shetti v. Kanthappa Shetti (1915) 34

M.L.J. 431 that Article 134 is really a branch of the law of prescription and the reason for giving the protection of the statute of repose is weightier

in the case of the transferees from representatives of the mortgagee than in the case of transferees from the original mortgagee. The defendants

referred in this connection to the decision in Venku Shettithi (dead) and Others Vs. T. Ramachandrayya and Others, which is referred to in

Karuppannan Servai v. Deivasigamania Pillai (1954) M.L.J. 12 : ILR (1954) Mad. 664. In this case Article 134 was applied to a case where a

mortgagee in possession transferred the property under a sale deed for consideration to another and put him in possession and what was bargained

for by the transferee was an absolute sale though he knew that the transferor had only a mortgagee''s interest on a suit instituted by the mortgagor.

In Nanni Bai and Others Vs. Gita Bai, it is said by the Supreme Court:

Article 134 of the Limitation Act contemplates a sale by the mortgagee in excess of his interest as such. The Legislature, naturally, treats the

possession of such transferees as wrongful, and therefore, adverse to the mortgagor, if he is aware of the transaction. Hence the longer period of

60 years for redemption of the mortgaged property in the hands of the mortgagee or his successors-in-interest, is cut down to the shorter period of

12 years'' wrongful possession, if the transfer by the mortgagee is in respect of a larger interest than that mortgaged to him. In order, therefore, to

attract the operation of Article 134, the defendant has got affirmatively to prove that the mortgagee or his successor-in-interest has transferred a

larger interest than justified by the mortgage. If there is no such proof, the shorter period under Article 134 is not available to the defendant in a suit

for possession after redemption.

The requisite proof is clearly available to the defendants before me. For the defendants, reliance is also placed on the decision in Palanithurai

Mudikondar v. Veerappa Thevar I.L.R.(1965) Mad. 427 : (1965) 1 M.L.J. 614 where Article 134 was applied to a case where the successors-

in-interest of the original mortgagee claiming absolute interest in the properties mortgaged purported to transfer full ownership thereof to the

transferee. It is not necessary to refer to all the decisions relied on by the plaintiff or for the defendants. Learned Counsel for the plaintiff drew my

attention also to the decision of a Full Bench of this Court in Valliamma Champaka Vs. Sivathanu Pillai and Others, where again it is pointed out

that while a redeeming co-mortgagor has a period, of 12 years under Article 132 of the Limitation Act for recovery from his other co-mortgagors,

the aliquot share of the mortgage money, there should be a corresponding right in a non-redeeming co-mortgagors to obtain possession of the

properties on payment of their share of the mortgage money within that period. The following observations in the Full Bench were referred to:

It will be plain that there will be two periods within which a non-redeeming mortgagor can obtain his property from his co-mortgagor who had

redeemed, the first is based on the rule of subrogation and the second is corelative obligation in the redeeming co-mortgagor to give up the

property belonging to his co-mortgagor on being paid the money due by him. In the former case where the mortgage is possessory the period of

limitation will be governed by Article 148 and the starting point for limitation will be the same as for the original mortgage redeemed. In the latter

case, the non-redeeming co-mortgagor will have a period of 12 years from the date of redemption of the original mortgage by the other co-

mortgagor. It will be open to the non-redeeming co-mortgagor to take advantage of any one of these periods whichever is to his advantage.

These observations cannot help the plaintiff in this case as the persons in possession who have to be dispossessed by the plaintiff are not redeeming

co-mortgagors but transferees from him who claim under conveyances by the redeeming co-mortgagor of the entirety of the property as if he had

absolute title to the property. It is this transfer in this case that attracts Article 134 of the Limitation Act.

Reference may be made to the Full Bench decision of our High Court in Rukmani Ammal Vs. N. Venkatarama Iyer and Others, . In that case

one of the co-mortgagors in two othi mortgages purported to sell the entire mortgagor''s interest to a third party who filed a suit for redemption of

the mortgages. After the third party filed the suit for redemption and after he secured possession, the other co-mortgagor filed a suit for

redemption, partition and separate possession of his half share in the properties and, the question that arose for consideration was the plea of

limitation. The purchaser who redeemed the entirety of the properties relied on Article 144 of the Limitation Act. There was no further transfer in

that case and the person in possession who was sought to be redeemed had acquired possession of the property only on redemption. It was

observed:

A claim by a non-redeeming co-mortgagor to recover his share of the mortgage property from the redeeming co-mortgagor who came into

possession of it on redemption, can be made on payment of his share of mortgage amount, costs of redemption etc. No right to possession exists

without such payments as under the law the redeeming co-mortgagor is subrogated to the rights of the original mortgagee; the co-mortgagors'' suit

even if it be for possession will in substance be only for redemption.... Therefore, the period of limitation applicable for redemption by the non-

redeeming co-mortgagor of his share of the property will be the same as that for redemption of the original mortgage.

In that decision the Court did not rule out the possibility of adverse possession and the applicability of Article 144 even in such cases, but on the

facts of the case, held that there was no ouster of the non-redeeming co-mortgagor by the other party. In fact they observed:

This does not mean that there could be no adverse possession with regard to a share in an equity of redemption. What all we say is that there is

nothing in the present case beyond the notice, dated 23rd September, 1924 to show that the first respondent''s father had prescribed any title by

adverse possession to a half share in the equity of redemption possessed by the other mortgagor.

In the absence of ouster or adverse possession, a preliminary decree for redemption was granted.

In the present case, if the plaintiff would have the suit as one for possession on redemption and rely on Article 148, in its wake, it will draw in

Article 134. If the plain tiff would look upon Muthuvelu Pillai as mortgagee for purposes of Article 148, the persons claiming under him, would be

transferees from him for purposes of Article 134. There is no dispute that in this case Muthuvelu Pillai had transferred a larger interest than what he

acquired in law under, the Court auction purchase in execution of the decree against his mortgagor. As a matter of law, the Courts below have

found that the interest of the plaintiff in the property had not been transferred by the Court-auction sale to Muthuvelu Pillai. It is admitted by the

plaintiff that he has been aware of the transfer by Muthuvelu Pillai and the possession of the defendants following such transfer. On the evidence it

is clearly made out that for over 20 years to the knowledge of the plaintiff, the transferees from Muthuvelu Pillai have been in enjoyment of the

property in assertion of ownership of the entirety of the property. It follows that the plaintiff''s suit for redemption has to fail under Article 134. It is

not necessary to consider the defence based on Article 144 of the Limitation Act. If Article 144 is applied, even then, clearly the action is barred

In the result, the Second Appeal is allowed, the decree and judgment of the lower appellate Court are set aside and that of the trial Court

dismissing the suit restored. Having regard to all the circumstances, the parties will bear their respective costs throughout.

No leave.