M. Natesan, J.
1. This Second Appeal by the defendant, who has lost in both the Courts below, raises an interesting question of law. The suit purports to be one for possession on redemption of a usufructuary mortgage. The property agricultural land originally belonged to one Shenbagathammal who had othied it to three brothers for a sum of Rs. 450 under a registered deed dated 9th October, 1936, Exhibit A-l, being the registration copy of the deed. The mortgagees had entered into possession pursuant to the othi in their favour. By a registered sale deed dated 7th July, 1937. Shenbagathammal sold the property to one Muthukumaraswami Pillai for a consideration of Rs. 650, a sum of Rs. 450 being reserved with the vendee for discharge and redemption of the othi. The plaintiff is the first wife's son of the vendee. He had on the first wife's death taken a second wife by name Chellathammal. Sometime after the purchase and before redemption, the vendee appears to have become mentally unbalanced and was not heard of thereafter. He is presumed to be dead. Though Chellathammal had no proprietary interest in the property, on 30th July, 1941 she executed a sale deed of the property in favour of one Maharasi Ammal for a sum of Rs. 600, Rs. 450 of the consideration being left with the vendee Maharasi Ammal for redemption of the othi evidenced by Exhibit A-l. This Maharasi Ammal had earlier taken a registered sub-othi for a sum of Rs. 150 on 22nd January, 1941 under one of the mortgagees, Exhibit A-4 being the registration copy of this sub-othi. The sale in favour of Maharasi Ammal completely ignored the rights of the plaintiff and there is no dispute that Chellathammal had no title to transfer. The plaintiff at the time of the sale deed was a minor aged about 12 years. The rights of the plaintiff were immediately asserted by his maternal uncle on his behalf and there is evidence of a mediation pursuant to which Maharasi Ammal gave a yadast or a memorandum of agreement dated 5th April, 1943, Exhibit A-16. This document refers to the purchase by the executant Maharasi Ammal of the suit property from Chellathammal and her redemption of the same at Rs. 450. It then contains a covenant that the executant will enjoy the property in lieu of interest for the sum of Rs. 450. It then contains a covenant that the executant will enjoy the property in lieu of interest for the sum of Rs. 450 paid for redemption and at the end of the year, if the sum of Rs. 450 was paid, she would give up the property in accordance with the decision of the mediators. It is recited therein that in terms of the decision, she would meanwhile be enjoying the property as under othi. The property was not taken possession of pursuant to the yadast within the year as contemplated therein nor subsequently. On the death of Maharasi Ammal, the present defendant, her minor son, entered into possession and is in possession.
2. It is in these circumstances that the suit has been filed by the plaintiff for possession as on redemption of an othi. The plaint specifically proceeds on the basis that the original othi was redeemed paying off the mortgagees. Only, the allegation is that the transaction of sale by Chellathammal and the redemption are all benami and cqlourable, the redemption having been out of monies belonging to the plaintiff's family. Reference is made to the yadast of 1943 on the covenant therein acknowledging the liability to be redeemed on payment of the othi amount. The right of redemption is stated to have accrued to the plaintiff by reason of the covenant contained in the yadast, Exhibit A-16. The plaint in the paragraph setting out the cause of action specifically refers to the redemption of the original othi on 14th August, 1941 and the covenant dated 4th April, 1943 agreeing to hand over possession, of the property on receiving the othi amount. The suit was filed on 5th February, 1960 several years after the plaintiff had become a major. The main plea for the defendant was one of limitation. It was contended that the suit in substance was one for possession, the redemption of the earlier mortgage by defendant's predecessor-in-interest being admitted. It was contended that there could be no further redemption of the original mortgage and in the absence of registration of the yadast Exhibit A-16 the plaintiff could not rely on Exhibit A-16 as creating a relationship of mortgagor and mortgagee and entitling redemption. Viewed as a mere covenant on the basis of the determination of the mediators to hand over possession on payment of Rs. 450 paid to the original mortgagees the suit as one for enforcement of the covenant will be clearly barred by limitation. As a suit against a person who had no right to be in possession, applying Article 144 also, the suit would be barred by limitation.
3. The lower appellate Court after referring to the sub-mortgage in favour of the defendant's mother lays emphasis on the facts that she must have come intopossession under a sub-mortgage and then pursuant to the sale deed in her favour by Chellathammal, paid off the balance of the othi amount. The Court below found that the possession of Maharasi Ammal was that of a volunteer and would hold that her possession cannot be better than that of an assignee of the mortgagee. The lower appellate Court would hold that despite the allegation in the plaint that the original mortgage has been redeemed, the suit could be deemed as one for redemption of the original othi and so in time. It is observed that the plea of redemption of the original mortgage set out in the plaint is not an absolute plea. Learned Counsel for the plaintiff-respondent finds it difficult to sustain this reasoning and rightly. On some vague notions of doing equity, one cannot ignore facts specifically pleaded and made the basis of action. The whole case of the plaintiff is that the earlier mortgage was redeemed and the redemption was with the monies of the family. The right of Maharasi Ammal under the sale deed was disputed and it was alleged that the sale was a benami, sham and fraudulent transaction by the step-mother Chellathammal. One of the mortgagees has come and given evidence and speaks to the redemption of the mortgage by Maharasi Ammal.
4. The lower Court has relied on the decision of Pitchaiappa v. Govindaraju : AIR1931Mad110 , for holding that Maharasi Ammal could be deemed to be an assignee of the mortgage. I fail to see how the decision can help the plaintiff in any manner. In that case the claim was for recovery of monies paid in discharge of a mortgage pursuant to the purchase of the property under a sale which was void and could not convey to the purchaser interest of the mortgagor. The plaintiff in that case had purchased the property from a person who was not the owner and his position in making the payment was equated to that of a volunteer under no obligation to pay thus disentitling him to claim the moneys paid. Far from the case helping the plaintiff, some of the observations therein would go against the claim of the plaintiff. Maharasi Ammal's possession on the redemption in the circumstances would be that of a total stranger. It would be adverse to the mortgager and adverse to the mortgagee. The mortgagees had parted with their possession no doubt receiving their mortgage amount and from that moment, her possession as against the mortgages was as an absolute owner free of all encumbrance. As against the mortgagor also, her claim was openly adverse and hostile. In fact this position is clearly recognised in the yadast, Exhibit A-16, and the plaint also refers to it. The yadast refers to the purchase and redemption and contains a covenant to give up possession on payment of the money paid for redemption meanwhile retaining possession of the property as under an othi. If the covenant could be proved and established and enforced, that would be a different matter, but as creating a right in property the yadast would require registration.
5. By reason of the very admission in the pleadings, the plaintiff has placed himself in a predicament. If independent of Exhibit A-16, the possession of Maharasi Ammal, the predecessor-in-title could be equated to that of a mortgagee, then there can be no difficulty, the plaintiff can redeem at any time under Article 148 of the Limitation Act. I will presently examine the character of the possession of Maharasi Ammal subsequent to the redemption. That the plaintiff cannot now rely upon the covenant under Exhibit A-16 is not seriously contested. Also the document cannot help the plaintiff, viewed as an acknowledgment of any subsisting right of redemption as then it has first to be established in law and on the facts that even before the date of Exhibit A-16 the possession of the defendant's mother was as a mortgagee. If the possession of the mother on the date of Exhibit A-16 was in her own right and hostile, such possession cannot be converted into that of a mortgagee without a registered instrument. The recitals in Exhibit A-16 could not be relied upon on the facts of this case as proof of the character of the possession; as that would be giving effect to the document, and changing the character of possession from adverse occupation to that of a mortgagee's possession. The decision of the Supreme Court in Mst. Kirpal Kuar v. Bachan Singh : 1SCR950 , is clearly against any reliance on Exhibit A-16 for establishing that the possession of the defendant is that of a mortgagee. Section 49(a) of the Indian Registration Act precludes the admission of an unregistered document when its effect would be to affect immovable property.
6. Learned Counsel for the plaintiff would contend that as Maharasi Ammal had no title, on her redemption of the othi she must be deemed, in law to be holding the property as a mortgagee. Some reference was made to her getting subrogated to the rights of the mortgagees. Emphasis is further laid on the facts that even prior to the sale she was a sub-mortgagee and therefore when she redeemed the property, she would be clothed also with the rights of a mortgagee. I am unable to appreciate the argument. If it is a case of lawful redemption of the original mortgage then the original mortgage is no longer subsisting. It has got extinguished by the redemption and there is nothing left to redeem. The possession of the person redeeming would be in his own right and hostile to any other person entitled to the possession of the property on redemption unless there is any fiduciary relationship between the person redeeming and the real owner when equity may in certain circumstances intervene on behalf of the real owner. If Maharasi Ammal had no interest to redeem, then her possession from the moment she secured possession paying off the mortgagees their money would be that of a stranger and a volunteer. She would have intruded between the mortgagees and the mortgagor without right. If the yadast Exhibit A-16 has to be ignored in regard to the character of her possession, then it is hostile and in her own right against the mortgagor and the mortgagees, and to the knowledge of the mortgagor. We are not concerned here with any claim by Maharasi Ammal to be reimbursed any money bona fide paid for redemption. She has purported to redeem the property in the right of the mortgagor and the mortgagees had allowed themselves to be redeemed. When her title was questioned on behalf of the plaintiff she agreed to surrender possession if the sum of Rs. 450 she paid to the mortgagees was paid. But even after the mortgagor became a major, he allowed time to run by and instituted the suit about 19 years after Maharasi Ammal's entry into possession as owner and about 13 years after he became a major.
7. The incidence of the sub-mortagage in favour of Maharasi Ammal prior to her purchase of the property and the subsequent redemption cannot alter the relative position. I am unable to understand the contention that as sub-mortgagee she redeemed the original mortgage. The interest which entitles a person to redeem a mortgage must be an interest derived directly or indirectly from the mortgagor since the making of the mortgage. The interest of the sub-mortgagee is from the original mortgagee and not from the mortgagor subsequent to the mortgage. Only a person who would be affected by a mortgage may redeem the mortgage. The right of redemption is exercised against the mortgagee. A sub-mortgagee is not affected by the original mortgage. Rather his rights are in it and over it. As sub-mortgagee, he is an assignee of the mortgagee's interest by way of security. The sub-mortgagee may be redeemed by his mortgagor, that is, the original mortgagee but he cannot redeem the original mortgage. He may have his usual remedies against his mortgagor, that is the original mortgagee as also against the original mortgagor. But the sub-mortgagee is not a derivative title holder of the original mortgagor to redeem the original mortgage, though the original mortgagor in his suit for redemption will have to implead the sub-mortgagee also. In these circumstances, the redemption by the sub-mortgagee, Maharasi .Ammal cannot be as a sub-mortgagee but under colour of title as purchaser of the property that is in her rights as owner may be pretended, of the equity of redemption. There is here in this case no question of a person in any fiduciary position taking advantage of his position and securing redemption.
8. No doubt Article 134 of the Limitation Act may not apply to the facts of this case. This is not a case of transfer by the mortgagee for valuable consideration. The transfer contemplated under Article 134 has always been understood to be a transfer of a larger interest than the transferor was competent to transfer. In this case, the mortgagees did not purport to do anything outside or opposed to their mortgage. They parted with possession as on redemption, and the possession of Maharasi Ammal was clearly hostile to the plaintiff, the person entitled to redeem. Such possession has continued to the knowledge of the mortgagor for over 12 years and more. No plea of any fraud or collusion between the mortgagees and Maharasi Ammal has been established and it is not the plaintiff's case that Maharasi Ammal's possession was on behalf of the mortgagees. Article 144 of the Limitation Act would therefore apply to the case. In the circumstances, the suit has to fail. The judgments and decrees of the Courts below are therefore set aside and the Second Appeal allowed. The parties will bear their respective costs throughout. No leave.