Venkateswara Rao, J.
1. This appeal under clause 15 of the Letters Patent arises out of a suit filed for redemption of a usufructuary mortgage and is directed against the judgment of our learned brother. Parthasarathi, J. in S. A. No. 593 of 1969. Plaintiff in the suit is the appellant before us.
2. The suit was filed for redemption of a usufructuary mortgage. Ex. A-1 dated 29-6-1927, which the predecessors - in-title of the plaintiff executed in favour of Yellappa, the father of defendants 1 to 5; and recovery of possession of the properties together with past and future profits. Three items of property, which were hypothecated under Ex. A-1, were conveyed by late Yellappa in favour of the 11th defendant under a registered sale deed. Ex. B-4 dated 9-9-1941. The validity and binding nature of this alienation is impeached in paragraph 7 of the plaint on the ground that the alliance is not a bona fide transferee for value without notice of the mortgage. The suit was resisted by the 11th defendant contending inter alia that Yellappa became the absolute owner of all the properties which were the subject-matter of the mortgage, Ex. A-1, pursuant to an arrangement with the mortgagors and thereafter conveyed in his favour the properties covered by Ex. B-4 for valuable consideration, that he has since then been in uninterrupted possession and enjoyment of the same in his own right and that the suit for possession of the properties purchased by him from Yellappa is, therefore, barred by limitation.
Appropriate issues were set down for trial and on a consideration of the evidence adduced by the parties, the learned Additional District Munsiff, Penukonda, held on issue No. 4 relating among other things, to the validity and binding nature of the alienation covered by Ex. B-4 that the transferees, including the 11th defendant, failed to prove that the alienations in their favour 'were made bona fide and for valuable consideration'. He also accepted the plaintiff's case that the suit mortgage is fully discharged and accordingly decreed the suit against some for the defendants including the 11th defendant, with costs and directed the determination of past and future profits due to the plaintiff in a separate application to be filed by him. Aggrieved by this decision, defendants 11 and 16 carried the matter in appeal to the District Court, Anantapur. The learned Additional District Judge, who dealt with this appeal, pointed out in paragraph 7 of his judgment that 'the only question that is urged and argued in the appeal is that the appellants have been in continuous and un-interrupted possession of the respective plaint schedule properties purchased by them since 1941. that the appellants thus perfected title to the suit properties by adverse possession and that the suit is not in time,' and ultimately dismissed the appeal on the ground that the suit is governed by Art. 148 and not 134 of the Limitation Act as, according to him, the recitals contained in Ex. B-4 would reveal that the mortgagee did not even profess to convey a larger interest than what he possessed as a mortgagee or an interest which is unencumbered by the mortgage.
This decision was, however, reversed by our learned brother. Parthasarathi, J. in the second appeal which the 11th defendant alone thereafter preferred as he was o the view that 'there was no reference in the deed of transfer to the interest of the transfer being only that of the mortgagee holding possession of the property' and 'on the other hand the transfer purports to be of the interest of the pattadar which as indicated by him is tantamount to the transfer of the absolute ownership in the property' and therefore 'there can be little doubt that the transfer made under Ex. B-4 is sufficient to bring it within the purview of Art. 134 of the Limitation Act'. Leave to appeal was granted by him while dismissing the second appeal. Hence this appeal under Cl. 15 of the Letters Patent by the plaintiff.
3. The conclusion reached by the our learned brother that the transfer covered by Ex. B-4 purports to be of absolute ownership in the property which is undoubtedly a larger interest than what the mortgagee was entitled to under Ex. A-1 is not questioned before us. But the learned counsel for the appellant contends that Art. 134 of the Limitation Act has absolutely no application to this case as, according to him, the respondent is not a bona fide transferee for value without notice of the mortgage. Art. 134 reads as follows:---
'To recover possession Twelve When the transfer becomes
of immovable property years known to the plaintiff.'
conveyed or bequeathed
in trust or mortgaged
and afterwards transferred
by the trustee or mortgagee
for a valuable consideration.
4. The essential requirements for the applicability of Art, 134 which is couched in clear and unambiguous terms, are (1) the suit should be for possession of property which is mortgaged, (2) the said property should have been transferred by the mortgagee, (3) the transfer must have been effected for valuable consideration and (4) the plaintiff should have known about the transfer more than 12 years prior to the date of the suit. These requirements are in addition to the one that the transfer by the mortgagee should be of a larger interest than what he has under the mortgage as it is now settled law that in order to attract the operation of Art. 134. the defendant should prove affirmatively that the mortgagee or his successor-in-interest has transferred or purported to transfer in his favour a larger interest than what was given to him by the mortgagor or at any rate, an interest unencumbered by the mortgage. We have already adverted to the fact that no attempt is made before us by the appellant to question the correctness of the finding arrived at by our learned brother that the transfer covered by Ex. B-4 is of absolute ownership in the property or a larger interest than what Yellappa had under the mortgage Ex. A-1.
Requirements Nos. 1 and 2 also set out above are satisfied in this case as the suit is laid for redemption of the mortgage and recovery of possession of the hypotheca and the items in dispute, which form part of the hypotheca, were transferred by the mortgagee to the respondent under Ex. B-4 dated 9-9-1941. But it is argued that the other requirements of Art. 134 viz., that the transfer should be for valuable consideration is not fulfilled in this case and that it is Art. 148 and not 134 that will govern the suit even in the event of its being found that the respondent purchased the properties for valuable consideration since he cannot, in the circumstances of the case, be regarded as having obtained the transfer in good faith and without notice of the mortgage. It is also urged that there is nothing on record to show that the plaintiff became aware of the transfer covered by Ex. B-4 more than 12 years prior to the date of the suit.
5. The contention that the respondent is not entitled to call in aid Art. 134 unless he proves to the satisfaction of the Court that he obtained the transfer covered by Ex. B-4 in good faith and without notice of the mortgage was rightly repelled by our learned brother. Neither want of good faith nor notice of the limited right of the transfer would affect the applicability of Art. 134 as it now stands. There is nothing in this Article warranting the inference that unless the transfer is obtained in good faith and without notice of the mortgage, the transferee should not be allowed to defeat a suit for possession filed beyond 12 years from the date when the transfer becomes known to the plaintiff. The Article in the Limitation Act of 1871, corresponding to Art. 134 of Act IX of 1908 by which this case is governed, contained the expression 'good faith' and the corresponding Article in the Limitation Act of 1859 contained the word 'bona fide'.
But we do not find mention of these requirements in Art. 134 of Act IX of 1908. This is a clear indication of the intention of the Legislature that the benefit of the shorter period of Limitation mentioned in Col. 3 of Art., 134 should be available to cases of all transfers of property by the mortgage, subject of course to the other requirements of that Article being satisfied. We may refer in this context to Thirruvikrama Ayyar v. Vyapuri, AIR 1927 Mad 1028 in which Srinivasa Ayyangar, J., pointed out:
'The corresponding article in the Limitation Act of 1871 contained the expression 'good faith' and the corresponding article in the Limitation Act of 1859 contained the words 'bona fide'. Both these articles therefore, were held applicable only to cases where the purchase or transfer as the case may be was either bona fide or in good faith. But in the Limitation Act of 1877, as in the Act of 1908, these expressions, 'bona fide' and 'good faith' have been deliberately deleted from the article. That deliberately deleted from the article. That deliberate amendment of the Art must be taken really to signify the intention of the legislature to the effect that the limitation of 12 years prescribed by the third column of that article should apply not only to cases of purchase and transfer bona fide or in good faith, but also to cases where there are transfers of property either by the trustee or by the mortgage, whether they are bona fide or not, and whether they are in good faith or not.'
6. It was similarly held by a Full Bench of the Nagpur High Court in Balabhau v. Rangulal, AIR 1955 Nag 145 that on the application of the terms of the article, neither want of good faith nor notice of the limited right of the transferor affects the applicability of Article 134. We cannot, therefore, agree that our learned brother erred in applying Art. 134 to this case notwithstanding that the respondent had not established that he obtained the transfer in good faith and without notice of the mortgage.
7. There is a similarly no substance in the plea that the learned Judge ought not to have applied Art. 134 to this case since there is nothing on record to show that the plaintiff became aware of the transfer obtained by the respondent more than 12 years prior to the date of the suit. The initial onus is on the plaintiff to establish that he came to know of the alienation in favour of the respondent within 12 years prior to the date of the suit; but no evidence at all is placed by him before the trial court to show when exactly he became aware of the alienation or that he came to know of the execution of Ex. B-4 well within 12 years prior to the date of the suit. Except for the bald allegation in paragraph 7 of the plaint that neither the mortgagee nor his sons had the right to alienate the hypothecated properties, there is nothing else in it to suggest, even remotely, that the plaintiff became aware of the alienation in question within 12 years prior to the date of the suit. When it is thus seen that the plaintiff failed to discharge the initial burden lying on him., he cannot be heard to say that the respondent should not have been allowed to invoke the aid of Art. 134 to non-suit him without first establishing that he (plaintiff) has been aware of the alienation ever since it was made or that it was known to him for more than 12 years before suit.
8. We cannot, however, brush aside the other contention urged for the appellant that the transfer in favour of the respondent is not supported by consideration. The parties jointed issue on this question and, as already stated, the trail court held on the relevant issue No. 4 in paragraph 23 of its judgment, that the 11th defendant failed to prove that he obtained the transfer covered by Ex. B-4 for valuable consideration. This finding has become final since it was not interfered with either in the first appeal or in the second appeal preferred by the 11th defendant and he is, therefore, bound by it. It is represented for the appellant that this contention was raised before our learned brother also though it was not dealt with by him. It is, however, contended for the respondent that the finding recorded by the trial Court on issue No. 4 cannot be considered to have become final so as to being him since its correctness was challenged before the learned Additional District Judge, though he did not give any decision on that question, and that the matter should, therefore, be remitted to him for fresh disposal after recording to him for fresh disposal after recording a finding on the question as to whether Ex. B-4 is supported by consideration or not.
A copy of the grounds of appeal before the District Court: Anantapur, which was read out by the learned counsel for the respondent, no doubt shows that the finding of the trial Court that Ex. B-4 is not supported by consideration is also questioned; but in view of the categorical statement by the learned Additional District Judge in paragraph 7 of his judgment that the only question urged and argued before him is one of limitation based on adverse possession, we cannot but infer that the ground relating to consideration, though raised in the memorandum of appeal, was not pressed as otherwise he would have certainly dealt with it. We do not, therefore, consider it necessary to remit the case to the District Court, Anantapur, or to call for a finding on the question as to whether Ex. B-4 is supported by consideration or not.
9. The question then is whether the respondent is entitled to the benefit of Art. 134 notwithstanding that the transfer obtained by him was found to be devoid of consideration by the trail Court. As already pointed out, one of the essential requirements of Art. 134, which is plain and explicit in its terms, is that the transfer by the mortgagee of the property mortgaged should be for valuable consideration. As the trial Court's finding that Ex. B-4 is not supported by consideration has become final for the reasons stated above, it have to be said that the respondent cannot call in aid Art. 134 for the purpose of non-suiting the plaintiff. If Art. 134 is not attracted, the plaintiff is free to ask for redemption of the mortgage and possession of the property at any time within sixty years from the date on which the right to redeem or recovery possession has accrued in view of Art. 148 of the Limitation Act. In this connection, we may extract, with advantage, what Malik, C. J. stated while examining the question as to whether a suit was governed by Art. 134 or 148 in Chunai v. Ram Prasad, : AIR1951All167 (FB).
'Where , however, the mortgages has, in denial of the mortgagor's title, made a transfer of the property, the question arises whether Art. 148 will apply or Art. 134. Where the transfer is without consideration there can again to be doubt that Art. 148 will apply.'
10. Reference may also be made to Sri Ram. v. Matwala, AIR 1923 Lah 219 in which it was held that Art. 134 has clearly no application to a gift as it is not a transfer for valuable consideration. Learned counsel for the respondent has not been able to refer us to any decision contra to say that the absence of consideration for the transfer does not have the effect of rendering Art. 134 in-applicable. We must, therefore, agree with the appellant that Art. 134 is not attracted in this case since one of the essential requirements thereof viz., that the transfer should be for valuable consideration, is not fulfilled.
11. Learned counsel for the respondent tried to contend that the suit as against his client would be out of time under Art. 114 even if Art. 134 is inapplicable as the respondent has been in continuous and uninterrupted possession and enjoyment of the property in question, in this own right, ever since September 1941 when he obtained Ex. B-4. This contention based on Art. 144 is a new plea raised for the efforts time in this letters Patent Appeal. It was no doubt averred in the written statement that he has been in possession and enjoyment of the property in his own right ever since the date of Ex. B-4; but this he did only for the purpose of pleading that the suit is barred by limitation under Art. 134 and not with a view to resist it on the basis of Art. 144. The parties did not join issue about the applicability or otherwise of Art. 144 in the trail Court not was this article pleaded as a bar to the suit as least in the courts of arguments before the learned Additional Districts Judge. Anantapur, in the appeal preferred by the respondent.
The Judgment of that Court would clearly show that the only article on which the plea of limitation was abased was Art. 134 and that there was no reference at all to Art. 144. Adverse possession is a mixed question of law and fact and not of law alone and has, therefore, got to be pleaded and proved. But when not even a plea based on Art. 144 was raised on behalf of the respondent at any earlier stage, it would be unfair to permit him to do so now a sit will have the effect of taking the opposite party by surprise and will seriously prejudice this interests. We cannot, therefore, countenance any contention based on Art. 144 at this belated stage.
12. As it has been concluded by us that Art. 134 has no application to this case for the reason that the transfer covered by Ext. B-4 is not supported by consideration and that the plaintiff by consideration and that the plaintiff is free to sue for redemption and possession at any time within sixty years from the date of Ex. A-1, we have to find that the suit is in time and not barred by limitation.
13. In the result, therefore, the decision rendered by our learned brother in S. A. No. 593 of 1969 is reversed and the appeal is allowed. We, however, direct the parties to bear their respective costs of this appeal as also the second Appeal No. 593 of 1969 in the circumstances of the case.
14. Appeal allowed.