1. Plaintiffs 2 and 4 to 16 are the appellants. They sued for redemption of a mortgage Ext. A of the year 1068 executed on behalf of the family of plaintiffs and defendants 10 to 11 in favour of one Rayan. Items 2 to 6 in the schedule appended to the plaint are buildings constructed on item 1 after the date of the mortgage and the plaintiffs sued for demolition of the same. It was alleged that the mortgage right had devolved on the 1st defendant and that defendants 2 to 9 were in possession under him. Item No. 1 is 3/4th of a property known by the name Kurakamoola Mannadi Purayidom. The 1st defendant and his mortgagee, the 2nd defendant contested the suit. According to them item 1 originally belonged to Kundupuzhakathoor house which mortgaged the same under Ext. B or 1 of the year 1055 to the plaintiffs family for a sum of 150 fanams. The plaintiffs family mortgaged it for 2200 fanams to Rayan. It was contended that the mortgage Ext. A was not subsisting as it was a sub-mortgage for a considerably higher amount than the mortgage money under Ext. B and as the plaintiffs family abandoned their rights to the property. Rayan purchased the equity of redemption of item 1 from the original tarwad under Ext. III of the year 1085. Thereafter his rights were purchased in court auction by one Kali Sankaran in execution of the decree in O. S. No. 1441 of 1092, Ext. IV being copy of the decree. The rights of the auction purchaser became vested in the 1st defendant in execution of the court sale in O. S. No. 69 of 1101, a decree obtained against Kali Sankaran and others. Ext. VI is copy of the delivery kychit in the latter case. It was therefore alleged that the 1st defendant had become the full owner of item

1. It was also pleaded by the 1st defendant that the suit was barred by limitation as it was brought 12 years after the date on which Rayans rights were sold in execution. The trial court held that the mortgage Ext. A had become extinguished since Ext. A was for a higher sum than the mortgage money under Ext. B and also as the plaintiffs family had abandoned their rights to the property. It was also held that the suit was barred by limitation under Art.122 of the Travancore Limitation Act. The suit was accordingly dismissed. On appeal by the plaintiffs, the learned District Judge of Trivandrum found that the mortgage Ext. A had not become extinguished but that the suit was barred by limitation. The decree of the trial court was therefore confirmed. The Second Appeal is thus from concurrent decrees dismissing the suit. The 1st defendant has filed a memorandum of cross objections against the finding of the lower appellate court that the mortgage had not become extinguished.



2. The questions covered by the memorandum of cross objections may be considered first. The point urged is that Ext. B could not be deemed to be subsisting as it was a mortgage for 150 fanams only whereas Ext. A was for 2200 fanams. It was argued that the mortgage for fs. 150 having been sub-mortgaged for 2200 fanams, the mortgage was to be deemed extinguished. I am unable to accept this contention. The mere fact that a mortgage right is sub-mortgaged for a higher amount is no reason for holding that the rights of the original mortgagee cease to exist after the date of the sub-mortgage. Another ground raised by the 1st defendant is that the plaintiffs family abandoned their rights to the property. The fact that this property was not included in a deed of partition Ext. E executed by the members of the plaintiffs family was relied on in support of this contention. Ext. E stated that properties not included in Ext. E were also to be divided later. In view of this, the omission to include this property in Ext. E cannot be treated as evidence of abandonment. Another piece of evidence relied on was that the 3rd plaintiff had attested Exts. VII and IX, executed by Rayan in which he had not specifically referred to the fact that he was holding the property under Ext. A. The circumstances under which the 3rd plaintiff happened to attest these documents are not known. In any case the fact of attestation is of no importance since the 3rd plaintiff was only one of the several coowners under Ext. B. The finding of ( the lower appellate court that Ext. A could not be treated as extinguished is therefore confirmed.



3. The only point that remains is that of limitation under Art.122 of the Travancore Limitation Act. The said Article corresponds to Art.134 of the Indian Limitation Act with this difference, that while the starting point under Art.122 is the date of the transfer that under Art.134 is when the transfer becomes known to the plaintiff. This case is one governed by the Travancore Limitation Act and the question therefore is whether the suit is barred under Art.12

2. The alleged transfers are two deeds Exts. VII and IX executed by Rayan in 1092 and 1094 respectively. Under Ext. VII item 1 is seemed to have been mortgaged with possession to one Kumaran Raman. The latter was directed to redeem certain usufructuary mortgages under which item 1 was then outstanding. Ext. IX is a deed of sale and mortgage. 3/4th of the property was sold and l/4th mortgaged by Rayan to one Madan Mariamichael. It may be mentioned that on the date of execution of these deeds Rayan owned 3/4th of Jenmom right over item 1 which he had purchased under Ext. III from the original owners and that he had a mortgage right over the remaining one-fourth share. The position taken up by defendants 1 and 2 in the courts below as well as here is that Rayan purported to deal with the property as full owner and that limitation therefore started to run from the dates of these deeds.



4. Article 122 is intended to protect a transferee who had reasonable grounds for believing that his transferor had power to convey and did convey an absolute interest. This article can be applicable only when a suit is brought against the transferee of the trustee or mortgagee. As held in Seetikutty v. Kunhi Pathumma (ILR 40 Mad. 1040 [LQ/MadHC/1917/131] ) and Madhava Iyer Venkitasubramania Iyer v. Rudran Narayanan (1954 KLT 113). This is not a suit against the transferees under Ext. VII or IX and the contesting defendants do not claim possession under them. This defence being one open to the transferee alone, Defendants 1 and 2 are not entitled to contend that the suit is barred by limitation merely because at some stage during the subsistence of the mortgage, the mortgagee executed some deeds in which he did not specifically trace his title to the mortgage under which he came into possession. A transferee from the Trustee or Mortgagee has to prove that he obtained possession for valuable consideration. The onus of proving facts which would attract the provisions of this Article lies heavily on the person who wishes to claim the benefit of an abridged period of limitation under this Article. So far as this case is concerned Exts. VII and IX which are relied on as grounds of limitation were not even referred to in the written statements of defendants 1 and

2. Thus there was no pleading on the question whether the transfers were for valuable consideration or whether the transferee obtained possession and except for the fact that Exts. VII and IX were produced in evidence, there was no evidence either on this point. Rayan did not assert in Ext. VII that he was the owner of the property dealt with. On the other hand he stated that he had both Jenmom and mortgage rights. Even Ext. IX he did not state that he was full owner of the property. Even if defendants 1 and 2 had alleged facts so as to attract Art.122, there was no proof of such facts in this case. That Rayan had no possession on the date of Ext. VII is clear from document because he directed the mortgagee to recover possession from earlier mortgagees. The mortgagee under Ext. VII was not a party to the suit under which Kali Sankaran is alleged to have recovered possession. Ext. IX was in 1094 during the pendency of the suit filed by Kali Sankaran. There is no evidence in the case to show that the vendee, under Ext. IX got possession. The transferees under Exts. VII and IX were not examined in the case and no attempt was made to show that they obtained possession and that the transfers were for valuable consideration. In the absence of pleadings on the point, there is no justification for blaming the plaintiffs for their failure to raise such contentions in respect of Exts. VII and IX. The courts below were not therefore justified in holding that the suit was barred by Limitation under Art.122 of the Travancore Limitation Act. The decree dismissing the suit must therefore be set aside.

In the result the concurrent decrees dismissing the suit are reversed and the plaintiffs are given a decree for redemption of the mortgage and recovery of item 1 on payment of a sum of 2200 fanams as mortgage money and fs. 6853-0-0 as value of improvements. The plaintiffs are also allowed to recover mesne profits at the rate of 6 per cent per annum on the amount directed to be deposited from the date of service of the notice of deposit. The amount deposited is allowed to be drawn by defendants 1 and 2 jointly or according to the result of any suit for establishing right to the same. The plaintiffs are further allowed to recover their costs here and in the lower appellate court from defendants 1 and 2 who will bear their costs throughout.