1. This appeal is directed against the decree and judgment of the learned District Judge of South Malabar in A.S. No. 229 of 1951 confirming the order and decree of the learned Subordinate Judge of Ottapalam, in O.P. No. 34 of 1949.
2. The case for appellants : The 5 items mentioned in the schedule to the petition belong to the tavazhi tarwad of the petitioners. Achutha Menon, the then karnavan of the tarwad, personally executed a mortgage in favour of Konthi Menon, the karnavan of the respondents' tarwad for Rs. 1,000 on the 23rd Medom 1049 (4th August, 1874), under Exhibit B-2. On the same day another possessory mortgage Exhibit B-1 was executed to the same Konthi Menon for a sum of Rs. 400. On the 13th of Medom 1052 (24th April, 1877) another mortgage for Rs. 1,376 was executed (Exhibit B-4.) Then Exhibit B-5 was executed for Rs. 143-12-1 on 8th of Meenam 1053 (19th March, 1878). Exhibit B-6 was another possessory mortgage document executed on the 28th Mithunam 1054 (7th July, 1879) for a consideration of Rs. 831. Subsequently there was a partition in the tarwad of the respondents in 1070 (1894-1895). On 8th June, 1898 a possessory mortgage document for Rs. 4,228 was executed in the names of one Gopala Menon and others for and on behalf of the respondents' tarwad. The persons in whose name that document was executed really took it on behalf of their tarwad. The properties in the petition have thereafter been remaining in the possession of the respondents' tarwad on the strength of that document. The petitioners and their tavazhi are agriculturists entitled to the benefits of the Madras Agriculturists Relief Act and the mortgages have been wiped out under that Act.
3. Respondents 3, 5, 7, 8 and 10 denied that the mortgage evidenced by Exhibit A-1 was taken on behalf of their tarwad. They also denied that it was acted upon or that any rights passed thereunder. They further contended that the other mortgages mentioned in the petition were barred by limitation and that therefore there was no scope for declaring that they were wiped out under the Act.
4. Both the Courts below found that in regard to Exhibit A-1 it had not been proved that it was executed either for the benefit of the tarwad or tavazhi of the respondents or that the rights under the prior mortgages had merged in the rights created under the original of Exhibit A-1 or that it was acted upon and in regard to Exhibits B-1, B-2, B-4, B-5 and B-6, that the time for redeeming the mortgages had expired and that the debts under those documents are not legally recoverable and that therefore no declaration could be given in respect of those debts under Section 9(1) of the Act. Hence this appeal by the defeated petitioners.
5. In regard to Exhibit A-1, I am bound by the findings of fact by both the Courts below. The conclusion of both the Courts below, which is found to be fully warranted by the evidence on record, is affirmed.
6. Turning to the other mortgages, both the Courts concluded rightly that a declaration cannot be granted under Section 9-A. A declaration under Section 9-A is given as a cheap and expeditious remedy to enable the debtor and the creditor to terminate the subsisting mortgage and make clear what amount, if any, will be due from the debtor to the creditor or whether the debt had become discharged and only possession has got to be given either by a settlement out of Court in terms of the declaration or by filing a suit for redemption, if possession has to be taken back and other remedies like calculation of improvements, etc., have to be gone into in the final settlement. The basis of this declaration is that there is subsisting debt upon which the provisions of the Act can operate. Secondly, a suit for possession could be filed on an adjudication of the legally recoverable debt. Courts do not give futile declarations if the debt itself has become unenforceable by the operation of the law of limitation and a suit for possession had become extinguished by reason of Section 28 of the Indian Limitation Act.
7. In this case the debts advanced on the usufructuary mortgages of the years 1874 to 1879, by reasons of the expiry of the sixty year period, have become unenforceable, in the absence of any contract to the contrary in the said usufructuary mortgages. The remedy of the debtor to sue for possession by redemption has become extinguished by reason of Section 28 of the Limitation Act which states that
at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
The general principle is that limitation bars the remedy and does not extinguish the right itself. This section is an exception to the general principles so far as suits for possession of property are concerned, and provides that the bar of the remedy shall operate to extinguish the right. The suit for possession referred to in this section is a suit in respect of which a period of limitation is fixed by Schedule I of the Limitation Act and would take in the suit for recovery of possession on redemption of the mortgage on the property and as it is virtually a suit for possession, on the expiry of the period of limitation for such a suit, the mortgagor's title to the property will be extinguished. Therefore, both the lower Courts have rightly concluded that the declaration asked for cannot be given even as regards other mortgages.
8. The learned advocate for the appellants Mr. Sundara Ayyar contended that by reason of the improvements under the compensation provisions of the Malabar Tenancy Improvements Acts, which would take in a mortgage and a sub-mortgage the right to the property as mortgagees and subject to the terms of the mortgage has not been extinguished and that it would be open to him to file a suit for redemption and ergo he can maintain the O.P. I am not prepared to accede to this argument as at present advised. Besides this question was not raised in the Courts below and there was no determination regarding the same and it would not be proper for me in the absence of any material to consider a hypothetical case.
9. In the result, this appeal is dismissed with costs.