1. This is second appeal by the 4th defendant arising out of a suit for redemption. The property, an extent of 2 acres 75 cents, originally belonging to one Gabriel by purchase in June, 1932. He usufructuarily mortgaged on acre comprised in S. No. 124 out of 2 acres 75 cents to one Antony Cruz for Rs. 300/-. The deed provided for 30 years for redemption. It contained a further provision that if there was default in payment of the mortgage money as stipulated in the deed, the transaction should be regarded as an absolute sale. We may immediately remark that this operated as a clog and this clause will be of no effect. As a matter of fact counsel on both sides have proceeded on this basis. The mortgagee by a deed dated August 25, 1934, purported to sell absolutely the one acre of land covered by the earlier usufructuary mortgage to Ross. When it was conveyed, the property was described as vacant land and house site of the vendor. After the death of the purchaser Ross his executrix one Mrs. Templeton sold the one acre to Mr. Brown for Rs. 6500/-. By then a pucca house had been built on the site by the late Ross and the house was names as "Clarendar". Mr. Brown in his turn sold the property to the 4th defendant by a sale deed dated March 30, 1961. The suit out of which this second appeal arises was instituted on March 9, 1964, by the son of Gabriel. The trial court held that Art. 134 of the old Limitation Act, which is equivalent to Art. 61(b) of the current Act of Limitation, applied to the suit and accordingly it was barred. The suit was therefore dismissed. The appellate court reversed the decree on the view that after all the purchaser from the mortgagee had no better right than the mortgagee himself and that since the mortgagor had a period of thirty years to redeem, the suit was within time.
2. The second appeal, because of the value of the property, comes before us for final disposal. In our view, the decree of the lower appellate court cannot be sustained. We think that it took a wrong view as to limitation. It seems to us that when a mortgagee purporting to be the absolute owner transfers the property covered by the mortgage, the mortgagor's remedy is to institute a suit for recovery of possession under Art. 61(b) and the period of limitation is 12 years and the time from which the period begins to run is "when the transfer becomes known to the plaintiff". This proposition is settled by Sarvotuma Kamath v. Abdulla Beary, ; Nani Bai v. Gita Bai,
and Subbiah Iyer v. Pichiah Pillai,
, held that though the suit was framed as one for
redemption, no question of redemption would arise and the suit was really one for recovery of possession of the properties and if it was filed more than 12 years after the date the mortgagor came to know of the transfer by the mortgagee, it would be barred. It was also held in that case that the fact that the cause of action for redemption of the original mortgage had not yet arisen would be no ground for holding that the suit was within time, as there was no room for the argument, that a cause of action could not be held to be barred even before it had accrued.
On this matter Srinivasa Ayyangar, J. in Seeti Kutti v. Kunhi Pathumma, ILR 40 Mad 1040 = (AIR 1919 mad 972 (FB)) appears to have taken a different view. The learned Judge felt that Art. 134 could not apply to suits where at the time of the transfer the mortgagor was not entitled to sue for possession, for, otherwise, he might be barred before he had a right of action. With respect, this view overlooks the fact that the moment the mortgagor comes to know of the wrongful transfer by the mortgagee of the property covered by the mortgage as absolute owner, his cause of action to sue for possession at once arises and he could not, notwithstanding this fact, wait for the cause of action for redemption to arise and sue for redemption in a leisurely way, allowing the alienee from the mortgagee to be in wrongful possession right through in the meantime.
In the Supreme Court held:
"The legislature, naturally, treats the possession of such transferees as wrongful, and, therefore, adverse to the mortgagor if he is aware of the transaction. Hence, the longer period of 60 years for redemption of the mortgaged property in the hands of the mortgagee or his successor-in-interest is cut down to the shorter period of 12 years' wrongful possession if the transfer by the mortgagee is in respect of a larger interest than that mortgaged to him. In order, therefore, to attract the operation of Article 134, the defendant has got affirmatively to prove that the mortgagee or his successor-in-interest has transferred a larger interest than justified by the mortgage. If there is no such proof, the shorter period under Art. 134 is not available to the defendant in a suit for possession after redemption."
This view has been followed in (1970) 1 Mad LJ 132. There a Division Bench of this court held that a suit for redemption of an othi against the alienee from the mortgagee would be governed by Art. 134 of the Limitation Act, only if the vendor purported to sell the property as his absolute property and the vendee purported to purchase it as such and the period of limitation begins to run from the date when the absolute transfer in favour of the alienee became known to the plaintiff.
3. Relying on the observations of Srinivasa Ayyangar, J., in ILR 40 Mad 1040 at p. 1061 = (AIR 1919 Mad 972 (FB)), Mr. Venkatarama Ayyar for the plaintiff-respondent contended that in this case cause of action had not arisen for redemption and that being the case, no question of limitation arises. But we have already dealt with the observations of Srinivasa Ayyangar, J., with which we are unable to agree. Mr. Venkatarama Ayyar's further contention is that in this case both the mortgagor and the mortgagee thought that the property conveyed under Ex. A-3 to Ross was not that covered by the usufructuary mortgage and it was only after trial it has since been found that the property transferred to Ross was identical with that covered by the mortgagee. But, for the application of Article 134, it is not the intention or belief of the mortgagee, who transferred that matters, but the fact that though he is a mortgagee, he in fact purported to transfer absolutely to a third party the property covered by the mortgage in his favour. The fact of his belief that he was transferring some other property cannot make any difference so long as it is ultimately found that the property transferred by the mortgagee was the property which was the subject of the mortgage.
4. In view of the foregoing position, it follows that Art. 61(b) is applicable to the suit. The lower appellate court has unfortunately not applied itself to the question as to when the transfer became known to the plaintiff. On this question, both the parties appear to have sought leave of the lower appellate court to have certain additional documents admitted in evidence, but without success.
5. The second appeal is allowed and the decree and judgment of the lower appellate court are set aside. The appeal is remitted to that court for fresh disposal in the light of the observations contained in this judgment. Parties will be at liberty in the circumstances to adduce such evidence as they wish on the question relevant to the knowledge of the plaintiff or his father of the transfer by the mortgagee. Court-fee paid on the memorandum of second appeal will be refunded. Costs of this appeal will follow the result of the appeal.
6. Appeal allowed.