1. This second appeal has been filed by 7th defendant in the suit. There are two questions which arise, viz., whether Article 61(a) or 61(b) of the Limitation Act of 1963, applies to the present proceedings, and if Article 61(b) is held to apply, whether the suit is within time.
2. The facts are in a short compass. One Madathi Ammal purchased the suit property measuring 1 acre 98 cents for Rs. 800 on 15-7-1922 under Ex. B-3. She executed a usufructuary mortgage of this property in favour of her sister Meenakshi Ammal on 26-11-1928 for Rs. 500/- under Ex. B1. It was provided in the usufructuary mortgage deed that the time for redemption was by 30th Adi, 1105 M. E. (14-8-1930) and that if the mortgage was not redeemed by then, the property would become the absolute property of the mortgage. The mortgage was not redeemed by 14-8-1930 and the mortgagee Meenakshi Ammal sold the said property in 18-8-1933 to one Karuppaswami under Ex. B-4. Karuppuswami executed a gift deed in favour of the 7th defendant on 6-6-1968 under Ex. B-2.
3. Madathi Ammal executed a gift deed on 2-10-1970 covering the same property in favour of her son, the plaintiff. She died within a few days thereafter. The plaintiff filed the suit, after her death, for a declaration that the property belonged to him in view of the discharge of the othi deed dated 26-11-1928 and for recovery of possession from the defendants. Defendants 1 to 6 are the legal representatives of Meenakshi Ammal and defendants 7 to 8 are the daughters of the purchaser Karuppaswami.
4. Defendants 1 to 6 remained absent. The 7th defendant, in her written statement adopted by the 8th defendant. claimed that she had become the absolute owner of the property under gift deed in her favour by Karuppaswami who had title to the property. She claimed also that the property was in the enjoyment of Karuppaswami and thereafter herself for over the statutory period so as to enable her to perfect her title by adverse possession.
5. The trial Court found that the provision in the mortgage deed, saying that the mortgagee would become the absolute owner after the date fixed for redemption in case the mortgage deed was not redeemed by that date, was a clog on redemption and therefore void; that the transferee Karuppaswami was only an assignee of the mortgage rights, that Article 61(b) of the Limitation Act applied and that Madathi Ammal knew about the sale deed in favour of. Karuppaswami on the date of its execution so that the suit was barred by limitation. It was also held that Karuppaswami had acquired title by adverse possession. In the result, the suit was dismissed.
6. On appeal, the learned Subordinate Judge considered the question as to whether the gift deed in favour of the plaintiff was true and valid and held that it was true and valid. On the question of limitation, he held that the plaintiff knew about the alienation in favour of Karuppaswami only in 1970 and that therefore the suit was within time. He took, further the view that the plaintiff and his predecessors-in-title were entitled to the benefits of Madras Act IV of 1938 and that the mortgage stood discharged by the enjoyment of the property for a period of more than 30 years. He therefore, decreed the suit for recovery of possession.
7. In the present appeal by the 7th defendant, learned counsel for the appellant contended that the Court below was wrong in proceeding as if the suit was not barred by limitation. His submission was that the property had been in the enjoyment of the 7th defendant and his predecessor-in-title Karuppaswami since 1933 and that they had perfected title to the property by adverse possession. For the respondent, the submission was that the suit was very much within time in view of Article 61(a) of the Limitation Act or in any event Article 61(b). The attempt of the learned counsel was to show that the plaintiff knew about the transfer only in 1970 and that therefore, the suit was very much within time, even if Article 61(b) is held to apply.
8. I shall first consider the question as to whether Article 61(a) applies. That Article relates to a suit by a mortgagor to redeem or recover possession of immovable property mortgaged. The period of limitation is 30 years and the period commences from the date when the right to redeem or recover possession accrues. The predecessor of this Article was Article 148 of the 1908 Act, which provided for a period of 60 years from the date when the right to redeem or recover possession accrued. This is not a suit for redemption, because according to the plaintiff, the mortgage debt stood automatically discharged by reason of Section 9-A(3) of Madras Agriculturists' Relief Act (Act IV of 1938). S. 9-A(1), as it stood at the relevant time, provided that if a usufructuary mortgage was executed at any time before September 30, 1947, and the mortgagee was in possession of the property mortgaged to him, the mortgagor was entitled to redeem the property notwithstanding that the time if any, fixed in the mortgage deed for redeeming the mortgage had not arrived. Sub-section (3) of the Section provided that where a usufructuary mortgagee was in possession of the property mortgaged to him for an aggregate period of thirty years or more, then notwithstanding the fact that the time, if any, fixed for redemption has not arrived, the mortgage debt should be deemed to have been wholly discharged with effect from the expiry of the period of 30 years. The result of Section 9-A(3) is that the present mortgage would stand discharged by 26-11-1958. Therefore, there is no question of redemption of the mortgaged property. The plaintiff sought to recover possession of the immovable property mortgaged. According to the plaintiff, there was a period of 30 years from 1958, so that the suit could have been filed till 1988. The case of the plaintiff was that the suit is very much within time. On behalf of the 7th defendant, the submission was that there was a specific Article viz., Article 61(b) relating to recovery of possession of immovable property mortgaged and afterwards transferred by the mortgagee for valuable consideration and that this was such a case, so that it fell within the scope of that provision. The plaintiff's counsel countered this submission by saying that this was a case where the property could be said to have been transferred by the mortgagee and that therefore, Article 61(a) alone applied.
9. These rival contentions lead me to consider the question as to what was transferred under Ex. B-4 in 1933. In other words, the point to be considered is whether the absolute interest in the property was transferred by Meenakshi Ammal or whether there was only an assignment of the usufructuary mortgage in favour of Karuppaswami. In Suleman Bahadur v. Mirza Fida Hussain Khan, AIR 1945 Oudh 258, a Bench of the Oudh Chief Court considered the question as to whether the mortgagor could show that the deed, though purporting to be an absolute transfer, was really of the mortgagee's rights, That Court held that extraneous evidence was admissible for the mortgagor to show what purported at first sight to be a transfer of an absolute title was, in the intention of the parties to the deed, only a transfer of the mortgagee's rights. It has also been pointed out in the judgment that if the deed purported on the face of it to be a sale of absolute rights, then the burden of providing that it was something different lay on the person who asserted it. In view of this decision, it is possible for the plaintiff herein to show that what was transferred under Ex. B-4 was only the mortgagee's right. Unless there was a transfer of the absolute title in the mortgaged property, Article 61(b) would not apply.
10. The circumstance relied on for the purpose of showing that there was only a transfer of the mortgagee's right is that the property has been sold by Meenakshi Ammal in favour of Karuppaswami only for a sum of Rs. 425/-. The property had been purchased by Meenakshi Ammal for a sum of Rupees 800/- and she had herself mortgaged the property usufructuarily for a sum of Rs. 500/-. As the consideration shown under Ex. B-4 is less than even the mortgage amount of Rupees 500/-, it was submitted that it could only be a transfer of the mortgagee's rights. The learned counsel for the 7th defendant-appellant submitted that Meenakshi Ammal sold the property after she had become the owner thereof by reason of the provisions in the mortgage deed. and she actually sold only the absolute rights. The consideration was only Rs. 400/- as, according to the counsel, there was a depression in the value of properties at the relevant time. On this point, the trial court has in a way accepted the plea of the 7th defendant, that the consideration shown in the document Ex. B-4 was a genuine one in view of the economic depression prevailing at that time. The complaint of the learned counsel for the plaintiff-respondent is that there was no evidence in support of the prevalence of economic depression. The prevalence of economic depression is a notorious or historical fact which, in my opinion, can be taken into account by any Court. I do not, therefore, see any reason to discredit the conclusion of the trial Court on this aspect merely because there was no independent oral or documentary evidence to show that there was an economic depression. There is reference to Ex. B-6 in the judgment of the trial Court, which is the transaction of sale of an adjacent property. That property, measuring about 3 acres 86 cents was sold for a sum of Rs. 700/- showing that the consideration set out in Ex. B-4 is not anything unreasonable. But Ex. B-6, though a registered document, has not been proved by producing the parties thereto. Therefore, it has to be eschewed. Even eschewing Ex. B-6, I do not think there is anything wrong in the conclusion of the trial Court that what was sold under Ex. B-4 was the absolute title to the property. The document prima facie shows that it is an absolute transfer of the property. I am not persuaded by the circumstances pointed out on behalf of the plaintiff to hold that the transfer was only of the mortgagee's right.
11. If the transfer was the absolute interest of Meenakshi Ammal, then the material Article would be Article 61(b). In Dhanalakshmi Ammal v. Anthuraj, : AIR1972Mad185 , a Bench of this court had occasion to consider the point as to which of the provisions of limitation would apply to a given case. It was held that when a mortgagee purporting to be the absolute owner, transferred the property covered by the mortgage, the mortgagor's remedy was to institute a suit for recovery of possession under Article 61(b) of the Limitation Act, 1963, and that the period of limitation was 12 years commencing from the time when the transfer became known to the plaintiff. It was pointed out that the moment the mortgagor came to know about the wrongful transfer, by the mortgagee, of the property covered by the mortgage, his cause of action was to sue for possession at once and that he could not 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 view of this decision, I hold that Art. 61(b) is the appropriate Article which applies to the facts here.
12. This taken me to the question as to when the plaintiff or his predecessors-in-title acquired knowledge about the transaction of sale under Ex. B-4. Before proceeding to consider the facts on this point, it is necessary to refer to the decision of the Supreme Court in Nanji and Company v. Jatashankar Dossa, : 1SCR492 , to find out the person on whom the burden of proof on this point, lies. That case arose under Article 48 of the Limitation Act of 1908. That Article applies to a person having the right to possession of movable property which has been wrongfully taken from him by another. The person who has been wronged can file a suit to recover the said specific movable property or for compensation therefor within three years from the date when he first learns in whole possession it was. The Supreme Court in the course of the judgment in that case, specifically approved a passage in the judgment of Rangnekar J., in Kailkhusroo Manekshah Talyarkhan v. Gangadas Dwarkadas, : AIR1936Bom322 appearing at page 860. It had been pointed out by the Bombay High Court that the onus was on the plaintiff to prove that he first learnt within three years of the suit and that the property which he was seeking to recover was in the possession of the defendant. If he proved these facts, then to succeed in the plea of limitation the defendant had to prove that the fact that the property was in his possession became known to the plaintiff more than three years prior to the suit. This passage demonstrates the shifting nature of the burden and as to when it shifts. A bench of this Court, in Subbiah Iyer v. Pichair Pillai : (1970)1MLJ132 , considered the same problem in relation to Article 134 of the Limitation Act of 1908, which corresponds to Art. 61(b) of the present Limitation Act. It was pointed out in the said case also that the burden was a shifting one and that it was, however, for the plaintiff to whom a prima facie case that the cause of action was not barred by limitation.
13. I have, therefore, to examine whether the plaintiff has proved prima facie that he and his predecessors-in-title knew about the transfer under Ex. B-4 within the period of limitation.
14. According to the plaintiff, he came to know of the transfer in favour of Karuppaswami, only after the issue of the suit notice in 1970, and in his oral evidence, he has stated that the property was in the enjoyment of Meenakshi Ammal and after her death, of her two sons. After the sons died, according to the witness, their respective wives and children were in enjoyment. He had also stated that he heard about the property having been transferred in favour of defendant 7 and 8. In his cross-examination, at one stage, he stated that he took out an encumbrance certificate with reference to this property and had filed it as an Exhibit in this case. At a later stage, be stated that he had not taken any encumbrance certificate and that he knew about the transfer. He would also say that he did not issue notices to defendants 7 and 8, only because the property was in the enjoyment defendants 1 to 6 being the heirs of Meenakshi Ammal. Learned Counsel for the appellant criticized this evidence by saying that it was only vague and that he could not say as to when the witness acquired knowledge about the transfer of the property. It was also stated that the witness has given out that be knew about the enjoyment of the property by Meenakshi Ammal and her heirs and that this could not have been accepted by the Court, as under the document of usufructuary mortgage, which had never been redeemed, the property could only have been in the enjoyment of the usufructuary mortgagee and her transferred. On this point, the trial Court has not accepted the evidence of P.W. 1, the plaintiff. The lower appellate Court has, however, believed his evidence. Ordinarily on a question of fact, I would be bound by the appreciation of evidence made by the lower appellate Court. But, in view of the fact that the Courts below have differed in the appreciation of evidence, I think it necessary and proper to examine as to how far P.W. 1 was properly believed by the lower appellate Court. It is he who has come forward with this suit for recovery of possession of the property: He has necessarily to show that he knew about the transfer of the property only in 1970. However in his evidence has he stated as to whether Madathi Ammal knew about the transfer or not. No doubt, from the fact that she gifted the property in favour of the plaintiff on 2-10-1970, one could draw an inference that Madathi Ammal proceeded on the basis that she had title to the property. But, in order to succeed in the plea that the suit is within time, the plaintiff has necessarily to establish that he and his predecessors-entitle had no knowledge of the transfer beyond the statutory period. In the absence of any statement to show that Madathi Ammal never knew about the transfer when she transferred the popery in his favor, I am unable to accept his evidence. Further, he has not stated from whom he obtained for the first time knowledge about the transfer of the property under Ex. B-4. The property is situate in the village in which both Madathi Ammal and Meenakshi Ammal were living. It is in evidence that Meenakshi Ammal was living 50 feet away from the residence of Madathi Ammal. It is difficult to believe that a transaction of sale by Meenakshi Ammal was such a guarded secret in the whole village as not to have been available to Madathi Ammal during the whole of her lifetime. The absence of knowledge of what happened to the property among unsophisticated villagers is such as to draw too much on our credulity. Kist receipts have been produced to show that Karuppaswami was paying kist for the property since 1965. Learned counsel for the plaintiff vehemently contended that no kist receipts have been produced for the period from 1933 till 1965. It is, however, not his case that anybody else had paid the kist or that anybody else was in actual possession of the property between 1933 and 1965. In these circumstances, the fact that Karuppaswami was in possession of the property right upto the date of gift in favour of the 7th defendant in 1968 has to be accepted. Therefore, the version of the 7th defendant that the property was right through in the enjoyment of Karuppaswami and thereafter of himself, was rightly believed by the trial Court.
15. Article 61(b) applies to a case where the mortgagor sues for possession of the property mortgaged which was afterwards transferred by the mortgagee for valuable consideration. The period of limitation is 12 years from the date when the transfer became known to the plaintiff. As I have already observed, the plaintiff has not shown that he or his predecessor-in-title viz. Madathi Ammal knew about the transfer only within a period of 12 years. The suit is, therefore, clearly barred by the provisions of Article 61(b) of the Limitation Act.
16. In the result, the suit was rightly dismissed by the Trial Court. The appeal is therefore allowed. There will be no order as to costs. No leave. The money already deposited towards mesne profits will be refunded by the Court, or if it has been withdrawn, it will be paid back by the plaintiff into court so as to enable the 7th defendant to withdraw the same.
17. Appeal allowed.