S. Natarajan, J.
1. The question for debate in the second appeal preferred by the plaintiff is whether the finding of the learned District Munsif, Srivaikuntam in O.S. No. 441 of 1968 which was confirmed by the Subordinate Judge, Tuticorin in A.S. No. 7 of 1971, that item (1) of the suit property did not belong to the predecessor-in-title of the appellant and that item (2) of the suit property was not liable for redemption and recovery of possession on the ground of limitation, is a correct one. In her suit, the appellant sought redemption and recovery of possession of two items of land, survey Nos. 746/2 and 746/1, of 83 cents and 44 cents respectively. Her case was that both the items were originally owned by one Namasivaya Mudaliar who sold them under Exhibit A-3 on 23rd July, 1862 to one Paranjothi Nadar. Under the original of Exhibit A-4 dated 13th May, 1871, Paranjothi Nadar sold the two items to one Yesuvadial. On Yesuvadial's death, her daughter Muthayee succeeded to her property. When Muthayee too died, her husband, Augustus Masilamani Nadar, succeeded to the property. He subsequently bequeathed the property by means of a Will to his foster-daughter, the appellant herein, and that is how the appellant claims title to the suit property. According to the appellant, her foster-mother Muthayee Ammal, had executed a usufructuary mortgage deed on 29th March, 1899 under the original Exhibit A-9 in favour of one Solomon Nadar. It was the redemption of this othi that was sought for by the appellant in her suit. Solomon Nadar, by Exhibit A-10 dated 15th January, 1901 sub-othied the suit property in favour of one Yesuvadia Nadar and two others. Later, Solomon Nadar assigned his othi rights to one Abraham Nadar under the original of Exhibit A-11 on 7th August, 1908. The assignee, Abraham Nadar retained item (2) and assigned the othi in respect of item (1) alone to one Koilpillai under the original of Exhibit A-12 on 8th May, 1913. It was the appellant's case that respondents 2 and 3, the daughters-in-law of Solomon Nadar, and the first respondent, a stranger, were in possession of the suit items only as othidars and were therefore bound to be redeemed and deliver possession. To bring the suit within time, the appellant took the stand that the recitals contained in Exhibits A-11 and A-12 constituted acknowledgments of the subsistence of the othi and would, therefore, attract the operation of Section 18 of the Limitation Act, 1963 (corresponding to Section 19 of the old Act of 1908). The further case of the appellant was that, by reason of the provisions of Madras Act IV of 1938 as amended by Act XXIV of 1950, the entire mortgage debt was wiped out and as such, no amount was due to the mortgagees.
2. The principal defence raised in the suit by the respondents was that the suit was barred by limitation as the recitals contained in Exhibits A-11 and A-12 did not amount to acknowledgments of liability. The other defence in the case was that the suit items do not belong to the predecessors-in-title of the appellant and, on the other hand, were owned by the predecessors-in-title of the respondents. With regard to item (1) the first respondent contended that it was originally owned by one Devasahayam Nadar. Eventually, one of the sons of Devasahayam Nadar, by name Koilpillai Nadar, acquired the sole right over that item and he usufructuarily mortgaged the property to one Esther Ammal. Subsequently, he sold the property to Esther Ammal herself under Exhibit B-2 and Esther Ammal, in turn, had sold the property to him under Exhibit B-1 and therefore, he was in possession of suit item (1) in his own right and not as an othidar. The second respondent as well as her vendee, pendente lite the fourth respondent, on the one hand and the third respondent on the other laid rival claims to item (2) of the suit property, but it is not necessary to make reference to the details of their claims as it has been found by both the Courts below that they have not established their title to the said item of property.
3. In the trial of the suit, the learned District Munsif found that item (1) of the suit property was not owned by Muthayee Ammal, the predecessor-in-title of the appellant, but was actually owned by Devasahayam Nadar, the predecessor-in-title of the first respondent. As regards the second item, the District Munsif found that the recitals contained in Exhibits A-11 and A-12 did not constitute acknowledgments of the subsistence of the othi created under Exhibit A-9 and therefore, the suit instituted in 1968 for redemption of a mortgage created in 1899 was out of time. Consequently, the learned District Munsif dismissed the suit and the dismissal was sustained by the Subordinate Judge of Tuticorin in the appeal preferred by the appellant. The appellant has now come forward with the second appeal to assail the judgments of the Courts below.
4. Mr. Padmanabhan, learned Counsel for the appellant, made a vain bid to contend that the finding of the Courts below that the appellant had no title over item (1) of the suit property was erroneous. But, I am afraid, there is very little material in the case to lend support to the appellant's claim that Muthayee, her predecessor-in-interest had title to the first item of the suit property. Excepting the fact that item (1) had also been included by Muthayee in the othi created by her under Exhibit A-9, there is no other document to show how she or her predecessors-in-title acquired rights to that item of property. The prior documents of title, Exhibits A-3 and A-4, do not contain any clear reference to item (1). The survey number as well as the patta number for that land are not adverted to in Exhibits A-3 and A-4. On the other hand, we find that the documents produced by the first respondent lend support to his contention that item (1) was originally owned by his predecessor-in-title, viz., Devasahayam Nadar. Exhibits B-21 and B-22, which are extracts from the settlement and re-settlement registers, unmistakably show that Devasahayam Nadar was recognised as pattadar of item (1) of the suit property. If really Paranjothi Nadar, from whom Muthayee's mother, Yesuvadial had purchased the properties under Exhibit A-4, was the owner of item (2) as well as item (1), he would have been shown as the pattadar, in the settlement and re-settlement registers, of both the items but, significantly enough, Paranjothi, ' Nadar is shown in the settlement and re-settlement registers as the pattadar of item (2) alone and not of item (1). As already stated, it is Devasahayam Nadar who is shown, in the registers, as the pattadar of item (1). Besides the entries in the settlement registers, we have also the prior sale deeds, Exhibits A-13 and, B-1 as well as the mortgage deed, Exhibit B.-3; which lend support to the claim of the first respondent that one of the sons of Devasahayam Nadar by name Koilpillai Nadar acquired sole rights over item (1) by reason of purchase from his, brothers and later on he mortgaged the property to Esther Ammal and eventually, sold his equity of redemption as well. The first respondent had produced pattas in his name for the said, item and even in the patta, Exhibit A-7, filed by the appellant herself, it is found that Devasahayam Nadar is shown as the pattadar for item (1). Thus from Exhibit A-7 itself, it is seen that, as early as fasli 1302, the first respondent's predecessor-in-title had been shown to be the pattadar in possession, of the first item of the suit property. In such circumstances, it is futile for the appellant to contend, merely by placing reliance on the recitals contained Exhibit A-9, that Muthayee Ammali was the owner of both the items of the suit property and therefore, she was entitled to sue for redemption and possession of not only suit item (2), but also-suit item (1). The dismissal of the suit by the District Munsif and the Subordinate Judge with regard to item (1) of the suit property must, therefore, be upheld.
5. Turning, now, to item (2) of the suit property, there can be no doubt whatever that it was owned by Muthayee and. consequently, the appellant is entitled: to seek redemption of the othi created under Exhibit A-9. The question, however, for consideration is whether the appellant's suit filed beyond a period of sixty years from the date of the othi is within time. To get over the bar of limitation, Mr. Padmanabhan, advanced a two-fold contention. The first was that the othi assignment deeds, Exhibits A-11 and A-12, executed by Solomon Nadar and Abraham Nadar respectively contained acknowledgments regarding, the subsistence of the othi under Exhibit A-9 and therefore, those documents, afford fresh starting points of limitation for proceedings for redemption and recovery of possession. The ratio in L.C. Mills v. Aluminium Corporation of India : 2SCR623 , which has been followed by V. Ramaswami, J., in Veerabahu Pattar v. Easwara Pillai : (1975)1MLJ31 and Somanatha Pillai v. Velayudham Pillai and Ors. S.A. No. 11 of 1972 that the words used in a statement, on which the plea of acknowledgment is founded, must relate to a present subsisting liability and indicate the existence of jural relationship between the parties, such as, for instance, that of a debtor and a creditor and the intention to admit such jural relationship, was sought to be distinguished by the learned Counsel on the ground that, in the instant case, there is a specific admission in Exhibits A-11 and A-12 about the subsistence and binding effect of the othi created under Exhibit A-9 and, therefore, the appellant was entitled to invoke the extended period of limitation conferred by Section 18 of the Limitation Act. Mr. Padmanabhan further tried to canvass that the appellant's case would be governed by the rule laid down by Ramanujam, J., in Jalali v. Anusuddin : AIR1974Mad340 , where the learned Judge, construing the terms of an assignment deed, exhibited in that case, held that the deed contained clear recitals of acknowledgment and therefore, the mortgagor was entitled to a fresh starting point of limitation from the date of the assignment deed for filing the suit for redemption. On a consideration of the matter, I find that the contention of Mr. Padmanabhan in this behalf cannot be sustained. A perusal of Exhibits A-11 and A-12 go to show that there is nothing in those documents to warrant the inference that either of the executants of the deeds had acknowledged the right of the mortgagor or the liability of the mortgagee under Exhibit A-9 in relation to the othi transaction. While Exhibit A-12 makes no reference at all to the mortgage under Exhibit A-9, Exhibit A-11 makes only a casual reference to the othi created under Exhibit A-9. There is a direction in Exhibit A-11 to -the assignee to redeem the subothi created under Exhibit A-10, but there is no reference whatever to the rights and obligations of the parties to Exhibit A-9. In such circumstances, it must be held that the reference to Exhibit A-9 in Exhibit A-11 was only a passing or casual reference and there was no conscious acknowledgment, as required by law, of the mortgagee's liability to be redeemed or the right of the mortgagor to redeem the othi created under Exhibit A-9. The Courts below were, therefore well founded in their rejection of the appellant's contention that Exhibits A-11 and A-12 constituted acknowledgments which had the effect of attracting the operation of Section 18 of the Limitation Act to the facts of the case.
6. Apart from this feature, there is one other factor also, which militates, against the appellant's case that the recitals in Exhibit A-11 afforded the appellant a fresh period of limitation. The assignment under Exhibit A-11 was effected on 7th August, 1908, while the suit was filed by the appellant only on 8th August, 1968, i.e., one day after the sixty year period allowed by law. 7th August, 1968 was not a holiday and therefore, the suit filed on the 8th August, was undoubtedly out of time. Therefore, even assuming that the recitals in Exhibit A-11 afforded scope to the appellant to claim a fresh period of limitation from 7th August, 1908 that cannot have any impact on the case, as the suit had been filed beyond the period of sixty years.
7. That leaves for consideration the second ground urged by Mr. Padmanabhan for bringing the suit within time. This contention is based on the provisions contained in the Madras Agriculturists' Relief Act (IV of 1938) as amended by Act XXIV of 1950. As has been held by a Full Bench of this Court in Konthalavalli Achi v. Ayyadurai Odayar : AIR1962Mad21 . Section 9-A of Act IV of 1938 as amended by Act XXIV of 1950 is not restricted in its application to usufructuary mortgages as defined in Section 58(d) of the Transfer of Property Act, but applies to all mortgages by virtue of which the mortgagee is entitled to remain in possession of the property mortgaged. Applying, therefore the terms contained in Section 9-A the argument of Mr. Padmanabhan is that the mortgagee under Exhibit A-9 had been in possession of the othied property for more than thirty years and therefore, the mortgagor, whose successor-in-interest the appellant is, is entitled to seek redemption and recovery of possession of the mortgaged property by reason of the deeming provision in the Act that the mortgage debt must be deemed to have been wiped out by reason of the mortgagee having been in possession of the mortgaged property for over thirty years. Mr. Padmanabhan would, therefore, contend that with effect from 18th October, 1950 when Act XXIV of 1950 came into force, the appellant had a sixty-year-period under the Limitation Act of 1908 and a thirty-year-period under the Limitation Act of 1963, to institute the suit for redemption or recovery of possession of immovable property which had been mortgaged. In support of this proposition the learned Counsel placed reliance on Ram Prasad v. Bishambhar Singh : AIR1946All400 , where in a suit instituted by a mortgagor under Section 9 of the U.P. Debt Redemption Act, the Court held that the suit must be construed to be one against a former mortgagee to recover possession of immovable property, that the suit would fall more appropriately under Section 62 than under Section 60 of the Transfer of Property Act and that the plaintiff was entitled to invoke the second limb of Article 148 of the Limitation Act and claim a time-limit of sixty years for filing a suit for recovery of possession from the date the mortgage debt was deemed wiped out by the operation of law. The ratio in the case cited above has been followed by another Bench of the Allahabad High Court in Pamsram v. Bindeshari : AIR1953All33 and the Bench expressed its view in the following words:
In an application under Section 12, U.P. Agriculturists Relief Act, 1934, it is open to a usufructuary mortgagor to ask for recovery of possession of the mortgaged property without the payment of the mortgage money if the mortgage money has been paid up from the usufruct of the property, and the period of limitation for such an application is sixty years from the date when the mortgage money was so satisfied and the right to recover possession accrued.
Having regard to the terms of Section 9-A of Madras Act IV of 1938 as amended by Act XXIV of 1950, read with Article 61 of the Limitation Act of 1963 (which corresponds to Article 148 of the old Limitation Act, except that the period fixed is thirty years in the new Act instead of sixty years in the old Act), I am of opinion that the plea of the appellant that she is entitled to seek for recovery of possession of item (2) of the suit property is, undoubtedly well founded. By reason of the operation of the Madras Act IV of 1938, the mortgage debt created under Exhibit A-9 must be deemed to have been wiped out on the day the amended Act came into force, for, by then, the mortgagee or his successor-in-interest had been in possession of the property for more than the period of thirty years prescribed under the Act. Consequently, the appellant had a statutory right from that date under the provisions of Section 62 of the Transfer of Property Act to seek recovery of possession. As the appellant's suit had been filed within a period of thirty years from the date of the debt got extinguished by virtue of the Act, the appellant must be held entitled to recover possession of item (2) of the suit property. This aspect of the matter had not been considered by the Courts below and therefore, the dismissal of the appellant's suit in respect of item (2) cannot be sustained.
8 Mr. Kanakaraj, learned Counsel for the respondents, would however, contend that the period of thirty years under Article 61 of the new Limitation Act can be availed of by the appellant only if the mortgage was subsisting, and not otherwise. His argument is that since the mortgage debt had been wiped out by Act IV of 1938 as amended by Act XXIV of 1950 on 18th October, 1950 itself, the relationship between the parties, as on and from that date, would not be that of mortgagor and mortgagee, but only that of owner and trespasser. Therefore, the appellant's suit filed beyond the period of twelve years for recovery of possession would be barred by limitation. According to Mr. Kanakaraj, it is Article 65 of the new Limitation Act (corresponding to Article 144 of the old Act), that would govern the situation of the case. To buttress his argument, the learned Counsel placed reliance on Ananthan v. Krishna Pillai A.I.R. 1957 Trav.Co. 145 and Prithi Nath Singh v. Suraj Ahir : 3SCR302 . On going through the judgments in those cases, I find that they deal with different situations and have nothing in common with the facts of the present case. The Travancore-Cockin case A.I.R. 1957 T.-C. 145 was one where a mortgagor under a usufructuary mortgage paid up the entirety of the mortgage amount and obtained delivery of all the title deeds, but got back possession of only a part of the mortgage security. It was in those circumstances, the Court held that the mortgagee's possession of that portion of the hypotheca which had not been delivered back must be deemed to be adverse to the mortgagor and consequently, a suit filed by the mortgagor beyond twelve years was barred by limitation. The Supreme Court case in Prithi Math Singh v. Suraj Ahir : 3SCR302 related to a matter where the mortgagors had paid up the mortgage money long before the filing of their suit, but had failed to get possession of the property usufructuarily mortgaged. In the suit filed by them long after, they contended that though the mortgage debt had been paid off by them, the mortgage still subsisted as they were entitled to get back the mortgage documents, the possession of the mortgaged property and the reconveyance of the property through Court. It was in those circumstances, the Supreme Court held that where the mortgage money had been received by the mortgagee and thereafter the mortgagee refused to perform the act, he was bound to do, the mortgagors were entitled to enforce their right to get back the mortgage documents, the possession of the mortgaged property etc., but that was a new right and was not to be confused with his right of redemption. From the facts of the instant case, it may be seen that the appellant, standing in the shoes of the mortgagor, had not paid up the mortgage money and neglected to demand recovery of possession. This is a. case where, by the operation of law, the debt had become paid up and therefore, the appellant was entitled to prove to. the satisfaction of the Court that her case fell' within the requirements of Act IV of 1938 as amended by Act XXIV of 1950s and that she was entitled to demand delivery of possession of the mortgaged property. The contention of the first respondent's counsel that from the date the debt was deemed discharged by the operation of law the possession of the respondents must be construed to be adverse to the appellant, is indeed an untenable contention and is opposed to a long catena of decisions. In Jai Nandan v. Umrao Koeri : AIR1929All305 , it was held that a usufructuary mortgagee cannot deny the title of the mortgagor and set up adverse possession unless he actually leaves the holding and enters under a different status. The Supreme Court in Lilachand v. Mallappa : 1SCR693 , following the decision of the Privy Council in Khiarajmal v. Daim (1905) I.L.R. 32 Cal. 296 (P.C.), observed that where the mortgagee comes into possession of the property pursuant to the usufructuary mortgage, his possession has a lawful origin and a mere assertion of an adverse title on his part cannot affect the subsisting equity of redemption of the mortgagors or operate to shorten the period of limitation prescribed for a suit for redemption. Mudholkar, J., held in Mulchand v. Ganga A.I.R. 1951 Nag. 366 that by the mere fact of satisfaction of the mortgage-debt the possession of the usufructuary mortgagee would not become adverse to the mortgagor and as such the mortgagee cannot be said to have excluded the mortgagor from possession from the date of satisfaction of the mortgage. Having regard to these decisions, the respondents cannot be heard to say that from the date of the wiping out of the mortgage debt by the operation of law, their possession had become adverse to the appellant and therefore the suit filed beyond twelve years was barred by limitation; more so, when there is nothing to show that the respondents had set up hostile title in themselves over the second item of the suit property.
9. At this juncture, it may be recalled that respondents 2 and 3 set up independent title in themselves to the second item of the suit property, but they have not substantiated their claim with reference to any document of title. There is, therefore, no difficulty in holding that the second item of the suit property does belong to the appellant and that she is entitled to recover possession of the same.
10. In a vain bid to sustain the judgments of the Courts below, Mr. Kanakaraj raised a contention that all the heirs of the mortgagees have not been impleaded and on that score the suit should fail. For projecting this contention he placed reliance on Md. Ismail Maracair v. Duraisami : (1959)2MLJ74 , where it was held that a mortgage is one and indivisible in regard to the amount and security and no suit can be filed to enforce a mortgage which entails the disintegration of either of them. But in the instant case, such a plea was not raised before the Courts below and no material was furnished to show that besides respondents 2 and 3 there were other heirs of Solomon Nadar the mortgagee under Exhibit A-9 or Abraham Nadar, the assignee under Exhibit A-11. Admittedly, respondents 2 to 4 alone are in possession of item (2) of the suit property. In such circumstances, the belated attempt of the respondent's counsel to non suit the appellant on the ground that the had not impleaded all the heirs of the mortgagee or his assignee cannot be given any recognition.
11. In the result, the appeal will stand allowed in part and the judgments and decrees of the Courts below as regards recovery of possession of item (2) of the suit property, will stand set aside. The appellant's suit will stand decreed in so far as item (2) of the suit property is concerned. No costs. Leave granted.