MADHAVA WARRIER Vs. RAMAN NAIR

JUDGEMENT

(1.) This arises out of a suit instituted by the original plaintiff, Rama Warrier now deceased, to redeem a usufructuary mortgage Ext. A 28, executed by his family in the year 1916. That mortgage contained a stipulation, that if it was not redeemed before a specified date in the year 1917, the mortgagee might treat it as an assignment of the kanam, which was the right mortgaged. Under a deed of the year 1919, which is not in evidence and by which the family of the mortgagee was partitioned, the right under or pursuant to Ext. A 28 was allotted to the share of Sankunni Nair, a member of the family, who was the father of defendants 20 & 21. Sankunni Nair purported to assign the kanam right and not merely the mortgage, to his wife and children by Ext. B 5 in the year 1922 and the latter in their turn assigned the same to the 22nd defendant by Ext. B 6 in the year 1923. The 22nd defendant took renewals of the kanam from the jenmi in the year 1929, and in the year 1941 by Ext. B 8. The suit that has led to this appeal was instituted by the deceased plaintiff as the karnavan of his family, on the 27th February, 1952. It was contested by the 22nd defendant and others, one of the pleas being; that it was barred by limitation. The stipulation in Ext. A 28 enabling the mortgagee to treat it as an assignment if redemption did not take place as specified, was; held by the Munsiff to be invalid, but was accepted as valid by the Subordinates Judge in appeal. This second appeal was preferred by the legal representative off the plaintiff and after he also died, has been continued by the additional appellant, who may be referred to as the appellant. The 22nd defendant who died during the trial of the suit is represented by the respondents.

(2.) The contention of the respondents based on the stipulation in Ext. A 28, which found favour with the Judge, cannot prevail. That stipulation amounted to a clog on redemption and is invalid. Learned counsel for the respondents did not support the Judges finding. The only other question which arises in this second appeal is whether the suit is barred under Art.134 of the Limitation Act. The assignments Exts. B 5 and B 6 purported to be of the kanam right in the property and not of the mortgage right under Ext. A 28. The mortgagee having; parted with the kanam right in the property to the 22nd defendant, Art.134 can very well be attracted, if the other conditions in the Article are satisfied. The: relevant part of that Article as amended, is to recover possession of immovable property ... mortgaged and afterwards transferred by the ... mortgagee for a valuable consideration, the period of limitation being 12 years from the date on which the transfer becomes known to the plaintiff. It was alleged in the plaint, that the plaintiff knew about the panayam assignment in favour of defendants 20 to 22 in the year 1950; this allegation was traversed by the 22nd defendant in the written statement. The plaintiff adduced no formal evidence even, in support of the allegation. Some evidence was adduced by the respondents to prove that Rama Warrier, a previous karnavan of the family of the plaintiff and one of the executants of Ext. A 28, was himself present at the time of taking the renewal from the jenmi, but it was found to be not dependable by the Judge.

(3.) Learned counsel for the respondents then contended, that it was for the plaintiff to prove, when the transfer became known to him and that the initial burden lay on him and not on the respondents; if prima facie proof was adduced the burden may, according to the circumstances, shift. For this proposition, reliance was placed on the summary of the law as set forth in Sanjiva Rows Limitation Act, 1958 edition, Vol. II, page 1108 and in Rustomjis Law of Limitation 6th edition, page 724, based on Raghunandan Misra v. Mahadeo AIR 1933 Oudh. 38 & Khadi Khan v. Murad Khan AIR 1942 Peshawar 39. When a fact is peculiarly within the knowledge of a party, the burden must be cast on him to prove it and that apart, generally speaking, it is for the plaintiff to prove that his suit is prima facie within time. But learned counsel for the appellant pressed into service the decision of Abdur Rahman, J., in Krishnaswami Aiyar v. Sabarathnam Chetti 1938 (1) MLJ 101 at p. 104, where, comparing Art.148 with Art.134 as it was before the amendment, when the starting point was simply the date of the transfer, the Judge observed: