Veetiparambil Ahammad vs Cheriath Chennamangalath Manakkal Karnavan and Another

Venkatasubba Rao, J.—The facts are somewhat complicated and I think it is unnecessary to state them in great detail. Chiyamu was

apparently the original owner of the property, but by Ex. B, dated the 15th January 1888, he acknowledged the plaintiff''s title and obtained a

kanom (mortgage) of the property. Whatever the rights originally of the parties were, that on the date of Ex. B the plaintiff became the owner of it

there is no question. Chiyamu who was thus only a mortgagee executed a deed of sale Ex. 3 on the 8th February 1897 in favour of his son-in-law,

Motippan. The sale was made on the footing that Chiyamu was absolutely entitled to the property. In October or November of the same year

Chiyamu died and on the 23rd of June 1898, a partition, Ex. G, was effected among his heirs and the kanom right of Chiyamu over the property in

question fell to the share of Aiyasabi, his daughter. The sale in favour of Mooppan was thus ignored in the deed of partition and it is equally

important to notice that the only right which Chiyamu was assumed to possess was the kanom right. Ex G was attested by Mooppan, the brother-

in-law of Aiyasabi. The next transaction is the transfer in favour of Mooppan by Ex. K dated the 2nd August 1898, of the kanom right which fell to

the share of Aiyasabi. It is suggested that Ex. K is not a genuine document. The Subordinate Judge assumes that it is genuine, but does not record

any definite finding. The question is not, however, of much importance as Mooppan recognised subsequent to Exs. G and K the jenm right

(absolute title) of the plaintiff and paid him rent on the footing that he was only a kanomdar. Payment of rent is evidenced by Ex. P series. That rent

was paid, is found as a question of fact by the Subordinate Judge. Whether Mooppan came into possession of the property under the conveyance

to him, Ex. 3,'' or under Ex. K is not distinctly found. This again, in my opinion, is not material. It is established beyond doubt that the right which

he claimed over the property was that of a kanomdar and that he admitted the absolute right of the plaintiff and paid him rent. Mooppan''s

possession, therefore, even subsequent to Ex. 3 was that of a tenant.

I must now refer to another set of transactions in virtue of which the 2nd defendant claims the property. Mooppan, by Ex. 6, dated the 19th

June 1906, professing to be the owner of the property, mortgaged it by way of hypothecation to one Parangodan. Possession remained with

Mooppan and Parangodan assigned the hypothecation to Kunhi Bava. The latter filed Suit No. 695 of 1909 against Mooppan to enforce his

mortgage and obtained a decree and brought the property to sale. The second defendant became the purchaser at the Court auction. It is not

disputed that the 2nd defendant has not been in possession of the property for 12 years.

The short question to be decided is, whether Article 134 of the Limitation Act is applicable. It runs thus:

To recover possession of Immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or

mortgagee for valuable consideration, 12 years from the date of transfer.

The contention of the 2nd defendant is that Chiyamu was the mortgagee and he transferred it to Mooppan and that there- fore, the suit which

was instituted more than 12 years after the date of Ex. 3 (the sale in favour of Mooppan) is barred. Unless the transfer in favour of Mooppan was

for valuable consideration. Article 134 would not apply. Although the circumstances of the case make it highly probable that Mooppan did not pay

consideration, I do not propose to rest my judgment on that, as the lower Appellate Court has not given a definite finding on the point. Then did

Mooppan get into possession of the property under Ex. 3 or under Ex. K? Though on this question again, I am inclined to think that he came into

possession under Ex. K, I do not desire to make this, the basis of my judgment. Were, it necessary, I would have called for findings on these

questions. I think, however, it is unnecessary to put the parties to further expense and permit further time to be taken up. Mooppan,

notwithstanding the fact that he took the sale-deed, admitted the jenm right of the plaintiff, dealt with him on the footing that he was the mortgagor-

landlord, acknowledged his title, paid him rent and constituted himself mortgagee-tenant, and throughout assumed,, his possession to be that of a

tenant; Mooppan then would have had no defence to the action of the plaintiff. He would not have been in a position to rely upon Article 134. The

2nd defendant claims through Mooppan and he cannot be in a better position than Mooppan was. On this short ground, I am clearly of the opinion

that Article 134 is not applicable...

If the plaintiff by his conduct had led the 2nd defendant to believe that Mooppan was the owner of the property the plaintiff might u/s 41 of the

Transfer of Property Act, be precluded from disputing the title of Mooppan. But it is not pretended that the plaintiff has done any act which might

produce this result.

A subsidiary contention was raised in regard to the apportionment of the kanom amount. The Counsel for the respondent, however, in order to

avoid a further enquiry, has agreed to pay the full kanom amount, namely, Rs. 61-1-2 although the amount payable in respect of the suit property

has been held to be only Rs. 28-14-11.

The appellant''s learned Vakil has contended that he disputes the amount of purapad allowed. No argument appears to have been put forward

in regard to this before the lower Appellate Court. To induce me to send this case back, this contention has now been raised. I overrule it.

Subject to the modification, that the kanom amount is raised from Rs. 28-14-11 to Rs. 61-1-2, the second appeal fails and is dismissed with

costs. Time for redemption is extended by three months.