LEKSHMI PILLAI Vs. CHELLAPPAN PILLAI

JUDGEMENT

(1.) The appellants are mortgagors whose suit for partition, and for redemption and possession of their share of the mortgaged property from the hands of their comortgagor 1st defendant, who having redeemed the mortgage was in possession, has been dismissed by the courts below on the ground that it is barred by time. In so doing, the courts regarded the suit (as indeed it purported to be, and, in truth, is) as a suit for the redemption of the appellants' share of the mortgage and for possession as a consequence. And they counted time from the date when the right to redeem what I might call the original mortgage (though there is in reality only one mortgage) and to recover possession accrued. This seems to me clearly in accord with both principle and authority. But, it is urged on behalf of the appellants on the strength of Valliamma v. Sivathanu ( AIR 1964 Mad. 269 (FB) that they have 12 years' time from the date of the redemption by the 1st defendant under Art.132, if not 60 years under Art.148, of the Limitation Act. It is because of this contention that the case has been referred to a division bench.

(2.) The mortgage, an Otti (which, in the Travancore area from which this case arises, means a simple mortgage usufructuary) was of the year 1887. The redemption by the 1st defendant was in 1954 and was in execution of a decree obtained by him in a suit instituted in 1950. That was beyond the normal period of limitation, but the 1st defendant successfully pleaded an acknowledgement of liability which made his suit in time. No such plea has however been taken in the present suit which was brought on 25-9-1958. A suit for the redemption of the mortgage had become barred under Art.136 of the Travancore Limitation Act, which gave only 50 years' time, before the Indian Limitation Act, 1908, giving a longer period of 60 years under Art.148, was extended to the Travancore area by Act 3 of 1951. It is therefore undisputed that, if the appellant plaintiffs can succeed only by redeeming the mortgage of 1887, their suit is out of time.

(3.) The Transfer of Property Act, 1882 was brought into force in the Travancore area in respect of agricultural land like the suit land only on 1-7-1955. Before that there was no statute in force in that area with regard to the matters covered by the Transfer of Property Act and cases had to be decided in accordance with the principles of equity, justice and good conscience. But, in their search for these principles, the courts almost invariably had recourse to the provisions of the Transfer of Property Act. I shall be content to do likewise, looking to the current Act, which in my view more successfully embodies those principles than the old pre - 1929 Act, for guidance.