(1.) Both these appeals arise out of a suit for redemption. The suit properties which belonged to Alappatt Illom were demised on kanam to the families of the plaintiff and defendants 8 onwards. The kanamdars mortgaged these properties to the ancestor of defendants 1 to 4 on 30-3-1043 for a consideration of Rs. 140/-. Even though plaint items 1 and 2 were charged under the mortgage deed, item 1 alone was put in possession of the mortgagee. After his death, his heirs continued to be in possession of the property. While so, the jenmi of the property instituted the suit OS No.1719 of 1073 for recovery of arrears of michavaram due under the kanom deed and also to compel the kanom tenants to take a renewal providing for payment of michavarom and other dues at enhanced rates. Defendants 1 to 5 in that suit were the kanamdars, while the 6th defendant was impleaded as a mortgagee under them. The 6th defendant was Variathu Poulo, the eldest son of the original mortgagee. This Poulo was the maternal uncle of the present defendants 1 to 3 and was also the grandfather of the 4th defendant. Variath Poulo also contested that suit. Ext. B is copy of the written statement filed by him. OS 1719 of 1073 was decreed and the kanamdars were directed to take a renewal of the kanam. Ext. A is copy of the judgment in that case. It was also provided in the decree that the mortgagee-6th defendant may execute the renewal deed in case the kanamdars failed to do so. The kanamdars were also agreeable to the renewal deed being executed by the mortgagee, and accordingly they surrendered possession of item 2 also to him about the year 1079 to enable him to pay the dues at the higher rate as provided for in the decree for renewal.
(2.) On 26-3-1080 the 6th defendant Variath Poulo executed the deed of renewal. Ext. C is the copy of that renewal deed. Subsequently, on 30-5-1093, these properties and other properties in the possession of the members of Poulo's family were partitioned by them. Ext. D is copy of that partition deed. According to the plaintiffs, the liability under the plaint mortgage has been acknowledged in Exts. B, O and D, and in view of such acknowledgments there is no bar of limitation for the present suit to redeem the mortgage. The 3rd defendant resisted the suit and contended that his possession of plaint item 2 and a portion of plaint item 1, is not under the plaint mortgage, but is under a kanom demise obtained from Alappatt Illom. He further contended that even if his possession is found to be under the plaint mortgage, the suit for redemption has only to be dismissed as being out of time, because there has been no proper or valid acknowledgment of that mortgage, and that Variath Poulo was incompetent to make any such acknowledgment binding on all the members of his family. Accepting this latter contention, the Trial Court held that the suit for redemption was out of time and accordingly dismissed it. The plaintiffs preferred an appeal against that decree. The lower appellate court found that in Ext. B Variath Poulo, who was one of the three sons of the original mortgagee, had clearly acknowledged the plaint mortgage and that even though such an acknowledgment could not keep alive the mortgage against all the heirs of the original mortgagee, it was sufficient to keep alive the mortgage to the extent of Variath Poulo's 1/3 share in it. Consistent with these findings, the lower appellate court allowed the suit in part and passed a decree for redemption of 1/3 share of the plaint items 1 and 2 on payment of the mortgage amount and the other amounts paid by Variath Poulo towards jenmi dues. It is against this decree that the 3rd defendant has preferred Second Appeal No. 445 of 1953. The other second appeal, 472/1953, is by the plaintiffs who maintain that the suit should have been decreed in terms of the plaint.
(3.) The decision in both these appeals depends upon the answer to the question whether there has been a proper and valid acknowledgment of the plaint mortgage so as to keep it alive even on the date of the suit. The mortgage was in favour of the ancestor of defendants 1 to 4 and it is common ground that the mortgage came into existence on 30-3-1043. The present suit was instituted at a time when the parties were governed by the Travancore Limitation Act (Act VI of 11001. Under Art.126 of that Act the period of limitation prescribed for a suit to redeem a mortgage and to recover possession of immovable properly mortgaged was 50 years from the date when the right to redeem accrued. Admittedly, no period was fixed under the mortgage deed in question. It follows therefore that the period of 50 years under Art.136 has to be computed from the date of the mortgage itself. The present suit was instituted long after the expiry of this period. It has therefore to be seen whether the mortgage was kept alive by any valid acknowledgment before the expiry of the said period of 50 years and within a period of 50 years prior to the date of the suit.