AYYAN AMMAL Vs. VELLAYAMMAL AND ORS.

JUDGEMENT

(1.) THE property, a fifth share of which the plaintiff claimed, belonged to Arumugam. He effected a usufructuary mortgage over that property in favour of one Sankaralingam on 22nd July, 1890. The rights of the mortgagee subsequently devolved on his daughter Kalyani. After the death of Arumugam, his five sons, defendants 3, 4, 5 and 6 and Sami succeeded to his rights. The plaintiff is the wife of the fourth defendant. Defendant 7 is the widow of Sami. On 27th July, 1906, four of Arumugam's sons, defendants 3, 5, 6 and Sami executed Exhibit B -1, purporting to convey the entire equity of redemption in the property to the first defendant. The first defendant redeemed the mortgage effected by Arumugam and obtained possession of the property some time between 1906 and 1912. She has been in possession of the property ever since. In 1920 the fourth defendant executed Exhibit A -2 in favour of his wife, the plaintiff, purporting to convey to her his fifth share in the suit property. The first defendant is thus in the position of a redeeming co -mortgagor, and the plaintiff of a co -mortgagor who did not participate in that redemption, that is, she is a "non -redeeming co -mortgagor".

(2.) THE plaintiff instituted the suit, out of which this second appeal arose in 1946 for recovery of possession of a fifth share in the property on payment of a fifth share of the mortgage amount. The main question debated in the suit was whether it was a claim for possession governed by Article 144 of the Limitation Act, or a suit for redemption governed by Article 148. The lower appellate Court held that Article 144 applied and dismissed the suit. The plaintiff preferred the second appeal.

(3.) WHEN that reference was heard by a Full Bench consisting of Satyanarayana Rao, J., Rajagopala Ayyangar, J. and myself, we were of the view, that the second question should be answered in the affirmative, and that the law on the scope of Section 95 of the Transfer of Property Act as it stood before it was amended by Act XX of 1929 was correctly laid down in Sinnan Chetty v. : AIR1921Mad326(1) . The first question, however, in our opinion, required consideration by a Fuller Bench, as it involved the question, whether Kanakamma v. : AIR1943Mad445 . which dealt with the scope of Section 53 -A of the Transfer of Property Act and Section 63 of Act XX of 1929, had been correctly decided. So we referred to a Fuller Bench the first of the question framed by Satyanarayana Rao, J., "whether Section 95 of the Transfer of Property Act is retrospective or not". That is the question now before us.