Varadaraja Iyengar, J.
1. This appeal arises out of a suit by a junior member in a branch of the Kuttamathu Nair tarwad in Pallichal Pakuthy, to set aside certain alienations as well as a partition effected by and among the members of the other branch of defendants 6 to 15 as if it had long ago become divided, The plaintiff's case was that all the evidence afforded by registered documents as well as judicial pronouncements pointed only one way, viz., the joint undivided status of the members of both the branches.
The court below after elaborate discussion held against the contentions of the defendants 6 to 15 and found that the plaintiff and defendants 1 to 15. constituted an undivided tarwad and that the properties scheduled to the plaint belonged to the common tarwad. This finding though disputed in the appeal memorandum is not questioned before us, The matter which is pressed before us concerns one other question between the parties which formed the subject of issues 4 to 6 in the case. They ran as follows :
'Are the defendants 6 to 15 in possession of plaint schedule items 1 to 9 on the basis of the document of 1001 as contended for in para 4 of the plaint and paras 20 to 22 of the replication?
'Is the document of 1001 a mortgage and Kuzhikanam or is it a lease and Kuzhikanam? In either case is the plaintiff entitled to redeem plaint items 1 to 9 on behalf of the tarwad on payment of the amount covered by the document and the value of improvements?
Is the right to redeem the above-said properties barred by limitation?'
2. This mortgage of 1001 has been filed in the case as Ext. E. It covers items 1 to 9 of the plaint schedule and was in favour of strangers from whom the 6th defendant's grand-mother Kali Narayani obtained a release under Ext. D dated 15-1-1035. Subsequently on 27-6-1071 Ananthan Aiyappan her son and karanavan of the branch of defendants 6 to 15 executed Ext. CD mortgage in favour of other strangers wherein he referred to the prior transactions Exts. E and D as leading to the instant one.
The plaintiff relied on Exts. D and CD as acknowledgments within the meaning of Section 19 of the Limitation Act so as to enable him, on behalf o the tarwad, to recover the items 1 to 9 from the defendants 6 to 15 on foot of Ext. E mortgage, though on payment of value of improvements. The rival contention of defendants 6 to 15 was 'that Exts. D or CD did not constitute any or sufficient acknowledgment under law and that the mortgage had in consequence become barred and the defendants 6 to 15 had become absolute owners.
The court below held in favour of the plaintiff on this question observing at the same time that the position arising from the acknowledgment was not very seriously disputed by the learned counsel for defendants 6 to 15. Mr. T. K. Narayana Pillai (N) appearing on behalf of the appellants urged before us that it was wrong for the lower court to have said that the defendants 6 to 15 did not seriously press before it the insufficiency of the acknowledgments relied on. Now it is well settled that the record made by a court in its judgment or order in respect of what happened before it, cannot without more, be allowed to be assailed before an appellate court and we could accordingly be perfectly right in ignoring learned counsel's disclaimer.
However we do not do so, for there is no merit in the contention either. Exhibit CD is by Ananthan Aiyappan describing himself as of the Kutta-mathu tarwad in favour of certain junior members in that same tarwad. The property is recited to be 'our' tarwad property which had been outstanding on pattom and Kuzhikanam executed by the karna-van in 1001 (under Ext. E) and got release of by Kali Narayani the mother of the executant in 1035 (under Ext, D). Learned counsel says that Ext, D being a release and not an assignment, in terms, of Ext. E mortgage could not be construed as an acknowledgment of the existence of the mortgage right and that on the other hand, it has to be construed as evidencing an extinction of the mortgage right.
We think however that the real nature of the transaction rather than the name given to it by the 1 parties should decide the matter. In this view there was in effect under Ext. D only an assignment of Ext. E mortgage right in favour of Kali Narayani a junior member of the tarwad. The acknowledgment of the subsistence of Ext. E mortgage by its mortgagees in Ext. D must bind Kali Narayani who derived her title to the mortgage right from them under Ext. D. Ext. D therefore gives a fresh starting point of limitation. Then comes Ext. CD in 1071 within the period of limitation commencing on Ext. D date and acknowledging Ext. E mortgage transaction of 1001 from the tarwad. Learned counsel says that Ext, CD cannot be relied on for two reasons, firstly because it does not contain an acknowledgment of the liability to be redeemed by the tarwad, as sought for in this suit.
Secondly because the acknowledgment, if at all, was made after the expiry of the period of limitation prescribed by the first schedule to the Act There is no substance in either of these points. For, as regards the first objection it is enough if the right, viz., to redeem claimed in the suit is a legal consequence of the matter viz., Ext. E mortgage which has been admitted. The acknowledgment need not directly refer to the liability sought to be enforced in the suit: See the cases collected at pp. 628 and 629 of Chitaley's Limitation, Vol. I, 3rd Edn. And as regards the second objection, the expression 'period prescribed' in Clause 1 of Section 19, does not refer exclusively to the period prescribed by the first schedule but will include any period prescribed whether in the body of the Act or the first schedule. So it has been held that an acknowledgment made during the additional period of limitation conferred by Section 19 will be sufficient for the purpose of the section. Learned counsel relied upon Govindan Nambiathi v. Parvathi Antharjanam, 8 Trav LJ 204 (A), in support of his first objection, but there the recital which consisted of the expression 'of the lands we have in Chittotti Thettom from the Nampyathi' were obviously descriptive of the lands dealt with and did not per se import any liability to be redeemed.
In another case reported in the same volume at page 210 Manes v. Padmanabhan, 8 Trav LJ 210) (B), there was an acknowledgment that the property dealt with was held by the executant under a mortgage of 988 and the acknowledgment of that subsisting mortgage right made by the mortgagee was held to imply an acknowledgment of the liability to be redeemed as well as an acknowledgment of the mortgagor's right to redeem. We therefore ' hold, along with the court below, that there was sufficient acknowledgment in law by the branch of defendants 6 to 15 of the mortgage of 1001 and their position at data of suit could be assimilated to that of a mortgagee only of the items concerned.
3. Apart from the theory of acknowledgment relied on by the plaintiff and found in his favour as above, the question was mooted before us that it was not open to the junior members defendants 6 to 15 to plead as against their tarwad, limitation or adverse possession in the circumstances as had developed. The argument is that when a junior member of a tarwad takes a release of an outstanding mortgage executed by the tarwad, or, for the matter of that gets an assignment thereof in so many words, he develops as against the tarwad only a special interest in the mortgaged property which he is bound to surrender after satisfaction thereof and on demand by the Karanavan.
The recovery of property by the karnavan is not in any sense, on redemption of the original mortgage. That mortgage had become extinguished by the very act of release or assignment for the junior members must be taken to fill the position of 'Jenmi' vis-a-vis the mortgagee. The argument is attractive and is not without force. There are however decisions to which eminent Judges were parties which perhaps strike a different note.
For instance, in Govindan v. Parvathy, 1 Trav LJ 66 (C) where a junior member mortgagee who was sought to be redeemed by other junior members but with the consent of the karnavari himself became karnavan pending suit, and the question was whether the suit could go on, it was held that the decree to be passed in such a case was to declare that the further possession of the mortgaged property by the mortgagor was in the capacity of tarwad mortgagee and that such a declaration was to have the effect of an acknowledgment in writing of the title of the tarwad by the mortgagee. The junior member here was no doubt an original mortgagee from the tarwad, and Sadasiva Iyer, C. J., also observed at page 67 :
'The position of a junior member, who is also the mortgagee of tarwad property is no doubt, anomalous. As a general member of the tarwad, he has got an interest in the equity of redemption, and as mortgagee, he has got a charge on the property itself. If such a junior member becomes also the karnavan, the position becomes still more anomalous, as he represents the mortgagor-tarwad being (its karnavan and trustee) and is himself the mortgagee.'
But the implication seems to be rather general that a junior member can be a mortgagee of the tarwad and there is scope for the doctrine of acknowledgment. - There is again the case in Ponnan Erayimman v. Kauliambi Kumaran, 6 Trav LJ 89 (D), where the junior members who had redeemed a mortgage from the tarwad and were in possession were allowed successfully to question a melotti given by the karnavan on foot of which they were sought to be redeemed in turn. What is of present interest to us in this case, is the observations of Kaman Menon, C. J., at page 96 :
'It seems to me to be anomalous to regard Anandravens who find themselves in the situation of defendants 6 and 7, as the representatives of their tarwad, inasmuch as their interest as mortgagees is dearly opposed to the interest of the tarwad, which is their mortgagor.'
These observations seem to imply that junior members who have redeemed tarwad mortgages, from strangers could still not be taken td be representatives of the tarwad in the matter. Our view is that the redeeming junior member cannot be equated to the position of an assignee of the mortgage but is rather to be taken as the holder of a special interest in tarwad property with right to continue in possession until his accounts are settled, and paid off. No question of limitation or adverse possession as against the tarwad could arise in this case. But it is unnecessary however to decide this question finally in this case.
4. In the result there is no merit in this appealand it is dismissed with costs.