Skip to content


Mytheen Pacha Rowther Masoodu Sahib and ors. Vs. Madhavan Pillai Kunju Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKerala High Court
Decided On
Case NumberSecond Appeal Nos. 444, 584 and 588 of 1963
Judge
Reported inAIR1969Ker259
ActsTravancore Limitation Act, 1100 - Schedule - Article 122
AppellantMytheen Pacha Rowther Masoodu Sahib and ors.
RespondentMadhavan Pillai Kunju Pillai and ors.
Appellant Advocate K.N. Narayanan Nair,; G.R. Panicker and; N. Sudhakaran
Respondent Advocate A.S. Krishna Iyer and; A.K. Rameseshadrinathan, Advs. (in No. 444 of 1963 for Nos. 1 adn 7 to 12), (i
Cases ReferredCourt In Meeran Pillai v. Damodaran Pillai
Excerpt:
property - redemption - article 122 of schedule to travancore limitation act, 1100 - suit for redemption of mortgages - plaintiff's right disputed by defendant - plaintiff purchased mortgaged properties under sale deeds - defendants contended that seller of properties not owners of property - munsif court upheld contention of defendant - whether plaintiff had right to redeem property - court confirmed findings of lower court - matter reverted back to trial court for adjudication in accordance with law. - - considering the nature of the contentions of the parties, the nature of the adventurous transactions that they have gone for, and the extent of their success, i consider it proper that the parties should bear their respective costs in all the courts;.....on the question of title of the plaintiffs is concurrent; and it is against the defendant. the learned counsel for the plaintiffs contended before me that the defendant was not entitled to canvass the correctness of the said finding in second appeal. he further submitted that the above finding hadbecome final, and that it would conclude the defendant from questioning its correctness in the second appeals arising from the other two suits. on the other hand, the learned counsel for the defendant contended that the findings on the question of the plaintiffs' title were divergent in the first two suits, that his client was entitled to have a decision on the said question from this court, and that the said decision would be certainly binding on the parties in all the three appeals. no.....
Judgment:

M.U. Isaac, J.

1. These Second Appeals arise out of three suits for redemption of three mortgages. The contesting parties are the same; and common questions arise for decision. Hence they were heard jointly, and are being disposed of by this single Judgment. The three suits are O. S. Nos. 245 of 1122, 430 of 1123 and 564 of 1124 on the file of the Munsifs Court, Adoor. The last suit was transferred to the Munsifs Court, Punalur, wherein it was filed as O. S. No. 565 of 1956. There are two plaintiffs in each suit; and they are the same. There is only one defendant in O. S. No. 245 of 1122; and he is the 5th defendant in O. S. No 430 of 1123, and the 1st defendant in O. S. No. 565 cf 1956. The plaintiffs' right to redeem was disputed only by this defendant; and he will be referred to in this judgment as the defendant. The 2nd defendant in O. S. No. 430 of 1123 claimed that she was entitled to a share in the mortgage right sought to be redeemed in that suit; but she subsequently faded out of the litigation. The remaining defendants in O. S. No. 430 of 1123 and O, S. No. 565 of 1956 did not contest the suits.

2. The properties sought to be recovered are 50 cents in the first suit, and 1.57 acres in the second suit, both being part of Sy. No. 418/2 in Pathanapuram Village, The property concerned in the third suit is 70 cents in Sy. No. 418/2 and 21 cents in Sy. No. 418/3 in the same village. According to the plaintiffs, all these properties belonged to one Mannilazhikam tarwad in Pathana-puram village; and the plaintiffs purchased the equity of redemption of the said properties from the members of the said tarwad under two sale deeds. The defendant contended that the persons from whom the plaintiffs purchased the properties were not members of the above tarwad, and that they did not get any rights in the said properties. The suits were defended on other grounds also, to which I shall refer subsequently. The first two suits were tried together, and were dismissed by the Adoor Munsifs Court, upholding the above contention of the defendant. The decrees in these two suits were confirmed in appeal by the Subordinate Judge, Kottarakara. The Punalur Munsif upheld the contention, of the plaintiffs in the third suit, and decreed it. This decree was confirmed in appeal by the District Court, Quilon. The aggrieved parties filed second appeals to this Court. Confronted with the peculiar situation of having conflicting concurrent findings on the same issue between the same parties by different Courts, my learned brother Velu Pillai, J. by his judgment dated 30th August 1962, set aside all the decrees and remitted the cases to the District Court, Quilon, for rehearing and disposal. Accordingly, the cases went back to the District Court; and the learned District Judge by his judgment dated 29th September 1962, set aside the decrees in the first two suits, and confirmed the decree in the third suit, after upholding the plaintiff's contention, The defendant died during the pendency, of the litigation; and his legal representatives have therefore, filed these second appeals.

3. I am afraid that the remand of the cases to the District Court did not solve the problem which my learned brother had to face on account of the conflicting concurrent findings. The same problem arises again in a slightly different form. In the third suit, the finding on the question of title of the plaintiffs is concurrent; and it is against the defendant. The learned counsel for the plaintiffs contended before me that the defendant was not entitled to canvass the correctness of the said finding in second appeal. He further submitted that the above finding hadbecome final, and that it would conclude the defendant from questioning its correctness in the second appeals arising from the other two suits. On the other hand, the learned counsel for the defendant contended that the findings on the question of the plaintiffs' title were divergent in the first two suits, that his client was entitled to have a decision on the said question from this Court, and that the said decision would be certainly binding on the parties in all the three appeals. No authority for the solution of this problem has been cited; and if I am to follow the precedent of my learned brother, I must again set aside the decrees under appeal and remand the cases for rehearing and disposal to the trial Court instead of to the lower appellate Court. But I do not propose to do so; I shall dispose of all the three appeals, after reappraisal of the whole evidence in the case having due regard to the conflicting views expressed by the Courts below. It is now about 20 years, since these litigations were started. In 1962 this Court remanded the cases to the District Court, with the observation that the District Court should dispose of the appeals as expeditiously as possible; and the learned District Judge disposed of them within one month. But these second appeals have been now pending before this Court for more than five years. This is another reason which compels me against remanding these cases again to the trial Court for disposal, on the technical question raised by the learned counsel.

4. In the order of remand, this Court directed that the evidence recorded in the first two suits may be treated as evidence in the third suit, and vice versa. The documents marked in those suits are to a large extent common; and a much larger volume of evidence has been adduced in O. S. No. 505 of 1956. Hence in stating the case of the partiesand discussing the evidence. I shall be referring to the documents marked in O. S. No. 565 of 195G as far as possible. Documents not marked in that suit but marked in the other two suits would be specifically referred to, whenever necessary. This is also the method adopted by the learned District Judge. I shall now refer to a few more facts, which are necessary to deal with the contentions of the parties. (Then after discussing evidence with reference to some of the contentions (not material for this report) his Lordship proceeded):--

17. The learned counsel for the defendant advanced before me a few more contentions, which are not seen raised before the lower appellate Court. In O. S. No. 245 of 1122 and O. S. No. 565 of 1956, the rights under the mortgages sought to be redeemed have admittedly vested in the defendant, and he is holding the properties concerned in these two suits, except Sy. No. 418/3, under the said mortgages. He has also got the case that he has purchased the equity of redemption in the said properties. Regarding the properties concerned in O. S. 430 of 1122, the learned counsel submitted that the defendant did not claim them under the mortgagee, but he held them as owner thereof. Ext. AA is the mortgage sued on: and Kunjali was the mortgagee. In 1104, the members of Kunjali's tarwad treated themselves as the owners of the mortgaged properties; and they partitioned them as per Ext. AAY. Thereafter, the persons who got parts of the said properties sold them as owners thereof; and the defendant claims title by purchase from the said persons or their assignees, The transfer by the mortgagee took place more than 12 years before the suit. It was, therefore, contended that the suit was barred under Article 122 of the Travancore Limitation Act VI of 1100. This Article reads as follows:--

Description of suit.

Period of

limitation

Time from which period begins to run.

'122.

To recover possession of immov-able property conveyed or bequeathedin trust or mortgaged and afterwards transferred by the trustee or mortgageefor a valuable consideration.

Twelve years.

The date of the transfer.'

The plea of limitation was not raised in the trial Court or in the lower appellate Court. It is not a pure question of law arising on admitted facts, as submitted by the learned counsel. Article 122 applies only to a transfer for valuable consideration. Unless the defendant pleads that the transfer by the mortgagee was as owner of the mortgaged property, that it was for valuable consideration, and that the suit is time-barred, as having been Instituted after the expiry of the prescribed period, the plaintiffs do not get an opportunity to meet this contention. If there is such a plea, the plaintiffs can plead and establish that the transfer was not for valuable consideration or that limitation has been extended by acknowledgment of the right to sue there may be other contentions also available to the plaintiffs. In these circumstances, the defendant cannot be allowed to advance such a plea for the first time in Second Appeal.

18. I shall, however, consider the arguments addressed say the learned counsel on the question of limitation. Article 122 of the Travancore Limitation Act corresponds to Article 134 of the Indian Limitation Act, 1908; but there is one difference between the two provisions. Under the Indian Act, the period of limitation begins to run from the time 'when the transfer becomes known to the plaintiff' while under the Travancore Act, it begins to run from 'the date of the transfer'. The Privy Council held in Skinner v. Kunwar Naunihal Singh, AIR 1929 PC 158 that the transfer by a mortgagee contemplated by this Article is a transfer which the mortgagee purports to make as the owner of the property, and not as the mortgagee. It was not disputed that this is the correct legal position; but it was submitted that the transfer by the mortgagee's successors-in-interest as owners of the mortgaged properties took place more than 12 years before the suit. The learned counsel referred me to the relevant documents; and he is right in the above submission. The next step in his contention was that knowledge of the transfer was not necessary, as it was under the Indian Act, and that limitation began to run from the date of the transfer. The learned counsel has not been able to place any authority in support of this contention. Such a construction of the Article would lead to very hard and inequitable results; and I am not prepared to construe it in that manner unless I am compelled to do so, by clear and express language of the Article. If, as the Privy Council said, the transfer contemplated by the said Article is only a transfer by the mortgagee as owner of the mortgaged property, it must follow that the period of limitation can start only when the said transfer becomes known to the plaintiff. It is not possible to hold that limitation would run against a plaintiff, when he has no reason to think that the defendant is not holding the property under the mortgage. So, I would hold that, on a proper construction of Article 122 of the Travancore Limitation Act, there Is no difference in effect between the said provision and Article 134 of the Indian Limitation Act, 1908. There is no case that the suit has been instituted more than 12 years after the plaintiffs or their predecessors knew that the mortgagee or her successors-in-interest transferred the mortgaged properties, as owners thereof. The plea of limitation cannot, therefore, succeed.

19. Another contention raised by the learned counsel for the defendant Is that the plaintiffs have not established that the property described in the plaint schedule in O. S. 430 of 1122 is the property mortgaged under Ext AA. Such a contention was not raised in the Courts below. No materials have also been brought to my notice in support of the said contention. I, therefore, reject this contention.

20. The learned counsel for the defendant also argued that the property mortgaged under Ext. AA to Kunjali and sought to be redeemed in O. S. 430 of 1122 was subsequently mortgaged to her along with other properties as per Ext. AM dated 23-9-1081, that Ext. AM is one of the mortgages directed to be redeemed in Ext. U, the sale deed taken by the plaintiffs, and that the plaintiffs cannot redeem the plaint property in O, S, 430 of 1122 without redeeming the mortgage Ext. AM. The learned counsel for the plaintiffs submitted that the properties mortgaged under Ext, AM are different. I do not propose to go into this controversy. No such plea was raised by the defendant in the courts below; and I do not allow him to raise it now in Second Appeal.

21. Two more questions arise fop decision, one relates to the value of improvements, and the other to costs. It was agreed by the counsel for both parties that the claim for value of improvements would be governed by the Kerala Compensation for Tenants' Improvements Act, 1858. This claim would, therefore, be determined accordingly. Considering the nature of the contentions of the parties, the nature of the adventurous transactions that they have gone for, and the extent of their success, I consider it proper that the parties should bear their respective costs in all the Courts; and I order accordingly.

22. In the result, I confirm the finding of the lower appellate Court that the plaintiffs are entitled to redeem the plaint schedule properties in all the three suits, except Survey No. 418/3 in Pathanapuram Village. O. S. No. 565 of 1956 on the file of the Punalur Munsiff's Court is transferred to the Munsiffs Court, Adoor; and all the three suits are remanded to the Munsiffs Court Adoor, for passing preliminary decrees in accordance with Order XXVIV Rule 7 of the Civil Procedure Code and in the light of this Judgment, The trial Court will bear In mind the principles laid down by this Court In Meeran Pillai v. Damodaran Pillai, 1958 Ker LT 248 in the matter of passing preliminary decrees.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //