RAMAN BHATTATHIRIPAD Vs. DEVASENA ANTHARJANAM

JUDGEMENT

(1.) THIS letters patent appeal is filed against the judgment and decree dated 16 -10 -1951 passed by Mr.Justice Raghava Rao of the Madras High Court in Appeal Suit No.549 of 1947 of that court.The suit which gave rise to that appeal was one for partition and redemption of a kanom right over one -half the properties sought to be partitioned.The properties belonged in common to the plaintiffs 'illom and a Nair tarwad,known as Melappat tarwad,in uzhuthu right,i.e .,"a joint jenmom right enjoyed by a rotatory system of cultivation designed to ensure equality of enjoyment,in quality as well as in quantity " ;.By Ext.P.1 the plaintiffs 'illom granted in 1859 a kanom demise of its undivided half right in the properties to the other coowner,the Melappat tarwad.In 1876 the Melappat tarwad sold the entire properties by Ext.P.12 to Koodancheri tarwad alleging that the whole properties belonged to them and that they were the absolute owners thereof.Koodancheri tarwad in its turn sold the properties to the defendants by Ext.P.13 dated 26 -8 -1915.The kanom demise,Ext.P.1,was ignored in this sale deed also and the sale was made on the footing that the Koodancheri tarwad was the absolute owner of the properties,having obtained the same under Ext.P.12.In 1931 the plaintiffs brought a suit,O.S.No.101 of 1931 of the Walluvanad Munsiff's court,for redemption of Ext.P.1.This suit was dismissed by the Trial Court,and the appeal as well as the second appeal filed by the plaintiffs were also dismissed.Ext.P.5 is the judgment of the High Court of Madras dismissing the second appeal arising out of O.S.No.101 of 1931.The High Court held by Ext.P.5 judgment that on account of the transfer(Ext.P.12)by the Melappat tarwad in 1876 the plaintiffs 'right to redeem Ext.P.1 had become barred by limitation and extinguished after twelve years from the date of Ext.P.12 under Article 134 of the Limitation Act.Subsequently,the plaintiffs brought,in the court of the Subordinate Judge of Ottapalam,the present suit for partition of the suit properties,basing their claim on the uzhuthu right,and for redemption of Ext.P.1 so far as the half -share which belonged to them and which they had demised by that document was concerned.The defendants pleaded inter alia res judicata by virtue of the decisions in O.S.No.101 of 1931 and the appeal and the second appeal against the decision in that suit and the bar of limitation under Article 134 of the Limitation Act.

(2.) THE Trial Court found that there was no res judicata but upheld the plea of limitation and consequently dismissed the suit.Against the Trial Court's decree the plaintiffs filed A.S.No.549 of 1947 in the Madras High Court,and Mr.Justice Raghava Rao heard and disposed of that appeal.Before that learned Judge the defendants 'counsel supported the Trial Court's decision both on the t ground of res judicata(which had not been accepted by the Trial Court)and the bar of limitation.Mr.Justice Raghava Rao was inclined to accept the plaintiffs 'case that there was no res judicata although he has not recorded a finding on that question.But he took the view that the plaintiffs 'right to redeem Ext.P.1 was clearly barred and extinguished by Article 134 of the Limitation Act,and therefore,he confirmed the Trial Court's decree and dismissed the appeal with costs.Plaintiffs have,therefore,filed this letters patent appeal.In O.S.No.101 of 1931 as well as in this case,both in the Trial Court and in the appellate court and also here,the parties have proceeded on the basis that Ext.P.1 was a mortgage.

(3.) ARTICLE 134 of the Limitation Act as it stood before the amendment of 1929 read as follows: To recover possession of immovable property coveyed or bequeathed in trust or motgage and afterwards transferred by the trustee or motgage for valuable consideration. Twelve years. The date of the transfer. The third column,after the amendment,reads:"When the transfer becomes known to the plaintiff " ;.The plaintiffs 'knowledge of the sale by the motgagee was,therefore,immaterial before the amendment,and if the mortgagee had sold the property for valuable consideration and the transferee had obtained possession,under the law as it stood before the amendment of 1929,the mortgagor's right to recover possession would have become barred and extinguished after twelve years from the date of the sale by the mortgagee.