Abdur Rahman, J.
1. This is an appeal dismissing the plaintiffs' suit for redemption and possession of 41 cents of land bearing Survey No. 382-B as being barred under Article 134 of the Limitation Act. The defendants who are apparently quite rich, have not chosen to appear. The facts of the case are quite simple.
2. The property in suit originally belonged to one Kuppa Goundan, who mortgaged it on 19th September, 1890, with one Lakshminarayana. The mortgage was usufructuary and it was provided in the deed (Ex. K) that the mortgagor would pay the principal amount and redeem the property on 11th April, 1901. Kuppa Goundan sold the property to the plaintiff's uncle in 1896 under Ex. A and directed the vendee to pay the mortgage money due under Ex. K to the mortgagee. The property subsequently fell to the plaintiff under Ex. B.
3. Prior to the date on which the mortgage could be redeemed, Lakshminarayana died - apparently leaving large debts due to the father of defendants 1 to 4 and his widow therefore acting as a guardian on behalf of his minor son executed a simple mortgage (Ex. IV) for Rs. 35,000, on 17th October, 1899. The property which had been mortgaged with Lakshminarayana under Ex. K and subsequently sold to the plaintiff, was also included in the deed. The mortgage was without possession. She executed another mortgage in favour of the same mortgagee for Rs. 1,19,771-8-0 on 4th November, 1900 (Ex. V). This purported to be a usufructuary mortgage for a period of ten years; but the recital in this deed points out to the fact that she was not in a position to surrender actual possession of the properties, as they happened to be in the possession of a receiver appointed in connection with O.S. No. 5 of 1900 and pending before the District Court of Cuddalore. A provision was therefore made that as long as she was not in a position to deliver possession, interest would be paid at Rs. 0-14-0 per cent, per annum.
4. The question, therefore, arises whether in the circumstances of the case Article 134 would apply. If so, from what date did the period of limitation actually begin to run?
5. It may be stated at the outset that since the property in suit was mortgaged in 1899 under a simple mortgage and in 1900 under a usufructuary mortgage for a period often years, the suit would be barred by limitation, if Article 134 is held to apply - long before it was filed in 1928 and the present words now substituted in the 3rd column of Article 134 by Act I of 1929, would have no application to the facts of this case. It is hardly necessary to trace the history of how the words in the 3rd column of Article 134 were changed by various legislations from time to time. Suffice it to say that before the Amendment of 1929, the words appearing in the third column of Article 134 were 'the date of transfer' and it is these words which I have been called upon to consider and construe.
6. There is no doubt that since Article 134 contains a stringent provision of law, the onus of proving facts which would attract the provisions of this article in preference to Article 148 or even possibly Article 144 would lie heavily on the party who wishes to claim the benefit of an abridged period of limitation. The remarks made in Radanath Doss v. Gisborne & Co. (1871) 14 M.I.A. 1 and Juggernath v. Syud Shah Mahomed amply support the proposition mentioned above.
7. It is true that there is no mention of any alienation in favour of the plaintiff's uncle in the mortgage deeds effected by Lakshminarayana's widow on behalf of her son - but before the provisions of Article 134 can be attracted, it must be shown that the mortgagee, that is, the father of defendants 1 to 4 had no knowledge of any alienation by the original mortgagor, that is, Kuppa Goundan of his rights. It might not have been actually necessary to prove 'good faith' but the absence of such a knowledge must at least have been established. There is no evidence in this case from which such an inference may be drawn in favour of defendants 1-4. It may be contended that it was impossible for defendants 1-4 to produce any evidence on the point as their father had died before the suit was filed. I would, therefore, particularly in their absence, not like to rest my decision on the absence of this evidence merely.
8. A close perusal of Article 134 would show that it was brought into existence with the object of filing suits for possession of the properties primarily mortgaged and subsequently transferred by the mortgagees, etc., in excess of their rights Skinner v. Naunihal Singh . If a mortgagee did not exceed his rights, he would be assigning his mortgagee's interest alone and in that case obviously Article 148 and not Article 134 would be held to be applicable. If on the other hand the mortgagee exceeded his rights and transferred the entire property as an owner - he must be held undoubtedly to have exceeded his rights as a mortgagee. In that case if it is necessary to institute a suit for possession either by a mortgagor or his alienees (as provided in the first column of Article 134 and which must be read along with what appears in column 3 of that article) it must be presumed that the mortgagee had possession and delivered it to his alienee. This would imply, in my opinion, that the word 'transfer' used in the third column of Article 134 must necessarily refer to a transfer of possession and not merely to a conveyance of title. This construction can be defended on another ground as well. If anything can really give notice to the outside world as to what the state of affairs actually is, it is possession and not merely a conveyance without possession which in some provinces of India could either be oral or by means of an unregistered document - if the transaction did not exceed a sum of Rs. 100.
9. I am aware of dissenting opinions on this point of eminent Judges like Wallis, C.J. and Coutts-Trotter, J., as expressed by them in Seeti Kutti v. Kunhi Pathumma : (1917)33MLJ320 but the opinion of the majority was the other way. In fact Srinivasa Aiyangar, J., went to the extent of laying down that if possession was not actually transferred on the date of conveyance, Article 134 would not apply at all. The result of the opinion of the majority of the Judges in the Full Bench case would be that while according to Abdur Rahim and Seshagiri Aiyar, JJ., limitation would actually begin to run from the date when possession was taken by the alienee from the mortgagee, the article would not be applicable at all according to Srinivasa Aiyangar, J., if possession was not delivered on the date of the conveyance.
10. As I have already stated possession under Ex. V could not have been given to the father of defendants 1-4 as the properties were stated in the mortgage deed itself to be in the Receiver's possession. There is no evidence on the record when possession was actually delivered and in the absence of such evidence, it is impossible to fix a date when limitation actually began to run even if Article 134 applied to the facts of this case.
11. There is another aspect of the case which is also quite important. The original mortgage of 1890 could not have been redeemed under the terms of the deed (Ex. K) before 11th April, 1901. It was transferred by Lakshminarayana's widow first under a simple mortgage on 7th October, 1899, and later on by means of what has been described as an usufructuary mortgage on 4th November, 1900. Can it be reasonably held that the limitation against the original mortgagor or his alienee began to run even before the date before a cause of action for redemption accrued to them? In spite of what has been said by one of the Judges in the minority, I am afraid, I must, with great respect, agree with what was so lucidly observed by the learned Judge Srinivasa Aiyangar, J., at page 1062 of that judgment.
12. The result is that Article 134 does not, in my opinion, apply to the facts of this case; but even if it did it must be held that as the defendants have failed to prove the date on which they got into possession the suit would be within time.
13. I would therefore set aside the judgment of the learned Subordinate Judge and send the case back to him for disposal of the remaining questions involved in the appeal.
14. The plaintiff will be entitled to recover the costs of the second appeal in this court. The court-fee put in by the appellant shall be refunded. The costs of the lower courts will abide the result.
15. I must in the end express my recognition of the help rendered to me by Mr. Panchapagesa Sastri in arguing this case not only with his usual thoroughness and ability but with very great fairness in the absence of the opposite party.