ARIYAPUTHIRA PADAYACHI Vs. MUTHUKUMARASAMI

JUDGEMENT

(1.) I think the transaction alleged in this case to have taken place in 1892, may properly be held to be an exchange of property within the meaning of Section 118 of the Transfer of Property Act, if it is not a sale. By it the mortgagee gave up his right to possession in part of the land mortgaged and the mortgage money due to him and received the equity of redemption in another part of the land. Even if this transaction was made by way of a compromise of disputes, it is not suggested that it amounted merely to acknowledgment or adj ustment of existing rights and the operations amounted, I think, to transfer of ownership in immoveable property. The arrangement was, therefore, invalid for want cf a registered instrument and could not affect the title.

(2.) It is, however, contended that it may be proved as showing the intention of the parties to discharge this mortgage at that time and so, as showing change in the nature of mortgagee s possession after the date of the arrangement, so as to make it adverse to the mortgagor. The intention to discharge the mortgage involves the intention to make certain transfers and it is impossible to say that if those transfers failed both parties nevertheless intended to discharge the mortgage. The mortgagor, therefore, had 60 years for his suit under Article 148 of the 2nd Schedule of the Limitation Act and he has come within that time.

(3.) The appeal therefore fails and is dismissed with costs. Sadasiva Aiyar, J.