The period of limitation for a suit for redemption of a mortgage against an alienee from the mortgagee is 12 years from the date when the transfer becomes known to the plaintiff.

VEERASWAMI, C.J.:- This is second appeal by the 4th defendant arising out of a suit for redemption. The property, an extent of 2 acres 75 cents, originally belonged to one Gabriel by purchase in June, 1932. He usufructuarily mortgaged one acre comprised in S. No.124 out of 2 acres 75 cents to one Antony Cruz for Rs.300/-, The deed provided for 30 years for redemption. It contained a further provision that if there was default in payment of the mortgage money as stipulated in the deed, the transaction should be regarded as an absolute sale. We may immediately remark that this operated as a clog and this clause will be of no effect. As a matter of-fact counsel on both sides have proceeded on this basis. The mortgagee by a deed dated August 25, 1934, purported to sell absolutely the one acre of land covered by the earlier usufructuary mortgage to Ross. When it was conveyed, the property was described as vacant land and house site of the vendor. After the death of the purchaser Ross his executrix one Mrs. Templeton sold the one acre to Mr. Brown for Rs.6500/-. By then a pucca house had been built on the site by the late Ross and the house was named as "Clarendar". Mr. Brown in his turn sold the property to the 4th defendant by a sale deed dated March 30, 1961. The suit out of which this second appeal arises was instituted on March 9, 1964, by the son of Gabriel. The trial court held that Art.134 of the old Limitation Act, which is equivalent to Art.61(b) of the current Act of Limitation, applied to the suit and accordingly it was barred. The suit was therefore dismissed. The appellate court reversed the decree on the view that after all the purchaser from the mortgagee had no better right than the mortgagee himself and that since the mortgagor had a period of thirty years to redeem, the suit was within time.

2. The second appeal, because of the value of the property, comes before us for final disposal. In our view, the decree of the lower appellate court cannot be sustained. We think that it took a wrong view as to limitation. It seems to us that when a mortgagee purporting to be the absolute owner transfers the property covered by the mortgage, the mortgagor's remedy is to institute a suit for recovery of possession under Art.61(b) and the period of limitation is 12 years and the time from which the period begins to run is "when the transfer becomes known

to the plaintiff".This proposition is settled by Sarvotuma Kamatt V. Abdulla Beary, (1957) 1 Mad LJ 170 : (AIR 1957 Mad 192); Nani Bai v. Gita Bai, AIR 1958 SC 706 and Subbiah Iyer v. Pichiah Pillai, (1970) 1 Mad LJ 132. (1957) 1 Mad LJ 170 : (AIR 1957 Mad 192), held that though the suit was framed as one for redemption, no question of redemption would arise and the suit was really. one for recovery of possession of the properties and if it was filed more than 12 years after the date the mortgagor came to know of the transfer by the mortgagee, it would be barred. It was also held in that case that the fact that the cause of action for redemption of the original mortgage had not yet arisen would be no ground for holding that the suit was within time, as there was no room for the argument, that a cause of action could not be held to he barred even before it had accrued. On this matter Srinivasa Ayyangar, J. in Seeti Kutti v. Kunhi Pathuinma, ILR 40 Mad 1040 : (AIR 1919 Mad 972 (FB)) appears to have taken a different view. The learned Judge felt that Art.134 could not apply to suits where at the time of the transfer the mortgagor was not entitled to sue for possession, for, otherwise, he might be barred before he had a right of action. With respect, this view overlooks the fact that the moment the mortgagor comes to know of the wrongful transfer by the mortgagee of the property covered by the mortgage as absolute owner, his cause of action to sue for possession at once arises and he could not, notwithstanding this fact, wait for the cause of action for redemption to arise an