In a suit for redemption, the burden is on the plaintiff to prove a subsisting title to redeem at the commencement of the suit.

1. The plaintiff is the appellant. The appeal is against the judgment of this court in S.A.No. 262 of 1954. (1956 K.L.T. 363). The suit, filed on 15-3-1119, is for the redemption of an alleged mortgage of unspecified date. According to the plaintiff the property belonged to one Kurichimattom. It was demised on Kanappattom to Kundarathala tarwad and the defendants are in possession under a mortgage executed by the Karnavan of the Kundarathala tarwad in favour of the karanavan of the defendant's tarwad. Those members of the Kundarathala tarwad who obtained in partition the equity of redemption of these properties, sold the same to the plaintiff on 27-12-1117 with a direction to redeem the mortgage. The cause of action is stated to have arisen on 21-4-1075, 4-1-1099 the date of partition in Kundarathala tarwad, and on 27-12-1117 when the equity of redemption was purchased by the plaintiff. The significance of the first date, i.e., 21-4-1075 is not indicated in the plaint.

2. The third defendant who alone contested the suit denied the mortgage and alleged that the property belonged to the defendant's tarwad from ancient times, that she has purchased it from those members who got it in the partition deeds of 1090 and 1104 of the defendant's tarwad, that the suit was barred by limitation, and that the plaintiff's vendors or their tarwad had no title to the equity of redemption.

3. The plaintiff filed a rejoinder stating that he was not aware of the date of the mortgage, and he was not in a position to produce a copy of the mortgage deed. But he alleged that the defendants' tarwad had all along been admitting that they had only a mortgage right in the property. It is also seen from the rejoinder that 21-4-1075, the first of the three dates shown in the plaint as those when the cause of action arose, is the date of Ext. D decree in O.S. 742 of 1075. That was a suit filed by the jenmi for recovery of arrears of michavarom from the members of the Kundarathala tarwad. Ayyappan Kumaran, the Karnavan of the defendant's tarwad had to be impleaded as the defendants were in possession of the property and a charge was sought to be enforced against the property. Ayyappan Kumaran remained exparte and the second defendant who was the then senior anantharavan of the Kundarathala tarwad filed Ext. E written statement to the effect that as the property was mortgaged to the defendant's tarwad, they were liable to pay the arrears claimed. However, there is no acknowledgment of the subsisting mortgage in Ext. E and that fact is admitted by the learned counsel for the appellant.

4. On these pleadings the learned Munsiff raised a solitary issue "Is the plaintiff competent to redeem". It was found on the strength of Exts. C to G that the defendants and members of their tarwad were in possession as mortgagees under Kundarathala tarwad. Though the plaintiff had not, pleaded or proved the year of the mortgage and had not established a subsisting right to redeem, the learned Munsiff held that the plaintiff was entitled to a decree for redemption as he has shown that the defendants held the properties as mortgagees. For this position of law reliance was placed on the observation made in Umamaheswara Iyer Subramonia Iyer v. Meeravu Ummini (9 T. L. J. 228) that "where the plaintiff does not tie himself down to any specific mortgage made in a particular year, and the defendant in possession denies the mortgage, the real question is whether the defendant is mortgagee of the property in suit, and in such circumstances the plaintiff is entitled to succeed if he proves that the land is held by the defendant as mortgagee". The appeal by the 3rd defendant in the District Court was dismissed, and the decree for redemption was confirmed substantially on the same ground as was given by the learned Munsiff. It was further stated in the appellate judgment that no question of limitation arises as the plea that was raised was not one of limitation but adverse possess