DEVADASAN Vs. PARVATHI PILLAI

JUDGEMENT

(1.) Plaintiffs 2 and 4 to 16 are the appellants. They sued for redemption of a mortgage Ext. A of the year 1068 executed on behalf of the family of plaintiffs and defendants 10 to 11 in favour of one Rayan. Items 2 to 6 in the schedule appended to the plaint are buildings constructed on item 1 after the date of the mortgage and the plaintiffs sued for demolition of the same. It was alleged that the mortgage right had devolved on the 1st defendant and that defendants 2 to 9 were in possession under him. Item No. 1 is 3/4th of a property known by the name Kurakamoola Mannadi Purayidom. The 1st defendant and his mortgagee, the 2nd defendant contested the suit. According to them item 1 originally belonged to Kundupuzhakathoor house which mortgaged the same under Ext. B or 1 of the year 1055 to the plaintiffs' family for a sum of 150 fanams. The plaintiffs family mortgaged it for 2200 fanams to Rayan. It was contended that the mortgage Ext. A was not subsisting as it was a sub-mortgage for a considerably higher amount than the mortgage money under Ext. B and as the plaintiffs' family abandoned their rights to the property. Rayan purchased the equity of redemption of item 1 from the original tarwad under Ext. III of the year 1085. Thereafter his rights were purchased in court auction by one Kali Sankaran in execution of the decree in O. S. No. 1441 of 1092, Ext. IV being copy of the decree. The rights of the auction purchaser became vested in the 1st defendant in execution of the court sale in O. S. No. 69 of 1101, a decree obtained against Kali Sankaran and others. Ext. VI is copy of the delivery kychit in the latter case. It was therefore alleged that the 1st defendant had become the full owner of item 1. It was also pleaded by the 1st defendant that the suit was barred by limitation as it was brought 12 years after the date on which Rayan's rights were sold in execution. The Trial Court held that the mortgage Ext. A had become extinguished since Ext. A was for a higher sum than the mortgage money under Ext. B and also as the plaintiffs' family had abandoned their rights to the property. It was also held that the suit was barred by limitation under Art.122 of the Travancore Limitation Act. The suit was accordingly dismissed. On appeal by the plaintiffs, the learned District Judge of Trivandrum found that the mortgage Ext. A had not become extinguished but that the suit was barred by limitation. The decree of the Trial Court was therefore confirmed. The Second Appeal is thus from concurrent decrees dismissing the suit. The 1st defendant has filed a memorandum of cross objections against the finding of the lower appellate court that the mortgage had not become extinguished.

(2.) The questions covered by the memorandum of cross objections may be considered first. The point urged is that Ext. B could not be deemed to be subsisting as it was a mortgage for 150 fanams only whereas Ext. A was for 2200 fanams. It was argued that the mortgage for fs. 150 having been sub-mortgaged for 2200 fanams, the mortgage was to be deemed extinguished. I am unable to accept this contention. The mere fact that a mortgage right is sub-mortgaged for a higher amount is no reason for holding that the rights of the original mortgagee cease to exist after the date of the sub-mortgage. Another ground raised by the 1st defendant is that the plaintiffs' family abandoned their rights to the property. The fact that this property was not included in a deed of partition Ext. E executed by the members of the plaintiffs' family was relied on in support of this contention. Ext. E stated that properties not included in Ext. E were also to be divided later. In view of this, the omission to include this property in Ext. E cannot be treated as evidence of abandonment. Another piece of evidence relied on was that the 3rd plaintiff had attested Exts. VII and IX, executed by Rayan in which he had not specifically referred to the fact that he was holding the property under Ext. A. The circumstances under which the 3rd plaintiff happened to attest these documents are not known. In any case the fact of attestation is of no importance since the 3rd plaintiff was only one of the several coowners under Ext. B. The finding of the lower appellate court that Ext. A could not be treated as extinguished is therefore confirmed.

(3.) The only point that remains is that of limitation under Art.122 of the Travancore Limitation Act. The said Article corresponds to Art.134 of the Indian Limitation Act with this difference, that while the starting point under Art.122 is the date of the transfer that under Art.134 is when the transfer becomes known to the plaintiff. This case is one governed by the Travancore Limitation Act and the question therefore is whether the suit is barred under Art.122. The alleged transfers are two deeds Exts. VII and IX executed by Rayan in 1092 and 1094 respectively. Under Ext. VII item 1 is seemed to have been mortgaged with possession to one Kumaran Raman. The latter was directed to redeem certain usufructuary mortgages under which item 1 was then outstanding. Ext. IX is a deed of sale and mortgage. 3/4th of the property was sold and 1/4th mortgaged by Rayan to one Madan Mariamichael. It may be mentioned that on the date of execution of these deeds Rayan owned 3/4th of Jenmom right over item 1 which he had purchased under Ext. III from the original owners and that he had a mortgage right over the remaining one-fourth share. The position taken up by defendants 1 and 2 in the courts below as well as here is that Rayan purported to deal with the property as full owner and that limitation therefore started to run from the dates of these deeds.