KANNUSAMI THANJIROYAN Vs. MUTHUSAMI PILLAI, DECEASED

JUDGEMENT

(1.) This suit was brought to redeem a usufructuary mortgage of the year 1885, and the sole question for determination is whether the mortgagor had 60 years within which to sue to recover possession under Article 148 of the Limitation Act, or only 12 years under Article 134 or 144. The mortgagee s interest in the suit properties changed hands four times between the execution of the mortgage-deed of 188.5 and the institution of this suit in 1911, first, by a Court sale in execution of a decree, secondly, by a sale in 1893 for arrears of rent due by the purchaser at the Court-auction, and thirdly and fourthly, by private sales in 1896 and 1906. The two private sales purport to be absolute transfers of the entire right in the property. The mortgagor s suit is obviously time-barred if 12 years have to be reckoned from any of these transfers but the last. If fraud had been alleged and proved, the plaintiff would of course have 12 years under Section 18 of the Limitation Act from the discovery of the fraud, but fraud is not the case set up here. The Subordinate Judge held that Article 134 or Article 144 applied and that Article 148 did not apply. Article 134 allows 12 years from the date of transfer.

(2.) On the mortgagor s behalf, it is contended that Article 134 is not applicable, because it was held in Ahamed Kutti v. Raman Nambudri 25 M. 99 : 11 M.L.J. 323, overruling Muthu v. Kambalinga 12 M. 316 : 13 Ind. Jur. 255 : 4 Ind. Dec. (N.S.) 570, that a purchase at a Court-sale is not a purchase within the meaning of the Article; and as regards Article 144 it is contended that it will not bar this suit because it allows 12 years from the defendant s possession, becoming adverse to the plaintiff and because a person who dispossesses a mortgagee in possession does not hold the property adversely to the mortgagor until the mortgagor becomes aware of the adverse title being set up by him [see Peria Aiya Ambalam v. Shunmugasundaram 22 Ind. Cas 616 : 38 M. 903 : 15 M.L.T. 112 : 20 M.L.J. 140 : 1 L.W. 119]. It is clear that the plaintiff cannot have resort to this Article unless he shows that Article 134 is inapplicable.

(3.) Since the decision of Ahmed Kutti v. Raman Nambudri 25 M. 99 : 11 M.L.J. 323 was given, the Limitation Act has been amended and the word "transfer" appears in place of the word "purchase" in Article 134. But as the transfer has to be one made by the mortgagee, the change in language will not affect the Full Bench ruling.