Plea of adverse possession taken in a suit for redemption by representative of mortgagee against original mortgagee.

The plaintiff is the appellant. The suit out of which this appeal airses is a suit for redemption of a usufructuary mortgage, Exhibit A-1, dated 24th July, 1907, executed by two ladies, Parameswari and Devamma, in favour of Raghavayya, for a sum of Rs. 550, the period fixed for payment being thirty years. The right to redeem the property would therefore accrue in 1937. The following genealogical table may be helpful in appreciating the facts of this case.

On 20th October, 1945, the plaintiff acquired the suit properties by sale deed Exhibit A-2 from Appayya, son of Pakkira, who claimed to be the reversioner of the last male-holder Keshava alias Subraya to whom the suit properties belonged. Keshava died issueless in about 1890 and after his death, the parties being governed by Mitakshara Law, Parameswari would be the heir. But the suit mortgage was executed both by Parameswari and her daughter Devamma, sister of the last male-holder Keshava, the recitals in the document showing that the properties belonged to them hereditarily. Parameswari died in 1908, and after her death, Devamma, it appears, applied to have transfer of the registry in her name and having secured it, purported to sell the suit properties to the mortgagee Raghuvayya under Exhibit B-7, dated 6th February, 1912. On the same day she got a gift of a portion of the properties she sold to Raghuvayya under Exhibit B-21. The properties obtained by Devamma by gift from the mortgagee-purchaser were mortgaged by Devamma to the fifth defendant under Exhibit B-23, dated 27th November, 1928. The mortgagee Raghuvayya claiming to be the owner of the properties on the strength of the sale deed Exhibit B-7 in his favour, purported to deal with the same by executing usufructuary mortgages of portions of the properties by three documents, Exhibits B-9, B-10, and B-63 dated 20th November, 1914, 9th January, 1917 and 25th May, 1917, respectively. The mortgagees are now in possession of the property.

The suit was mainly resisted on the ground that it is barred by limitation, the contention being that by reason of the transactions covered by Exhibits B-9, B-10 and B-63 the suit is barred by Article 134 as more than twelve years had elapsed since the date of those documents, since a suit to recover possession of such immoveable properties mortgaged and afterwards transferred by the mortgagee for valuable consideration is governed by Article 134. As regards the other properties which were the subject-matter of the mortgage Exhibit A-1, the contention is that they are barred by Article 144 as Devamma subsequent to the death of her mother Parameswari, and thereafter Raghuvayya have been in possession as absolute owners and have therefore prescribed title by adverse possession. The trial Court rejected both the contentions and granted a decree. In appeal the learned District Judge took a contrary view on both these questions.

It appears to me that in so far as the transactions covered by Exhibits B-9, B-10 and B-63 are concerned, there is no answer to the application of Article 134 as it is worded, since though the transactions under Exhibits B-9, B-10 and B-63 are only usufructuary mortgages executed by Raghuvayya who at the inception, on the date of Exhibit A-1, in 1907, was a usufructuary mortgagee, but on the dates of Exhibits B-9, B-10, and B-63 purported to execute those mortgages not as a usufructuary mortgagee but as owner claiming title under Exhibit B-7. The right to redeem would arise only in 1937 and a contention that a cause of action cannot be held to be barred even before the cause of action had accrued was raised, relying on the view of Srinivasa Ayyangar, J., in Seeti Kutti v. Kunhi Pathumma,1 whose view was endorsed by Abdur Rahman, J., in Krishnaswami Ayyar v. Subbarathnam Chetti2, but as the other learned Judges in Seeti Kutti v. Kunhi Pathumma1, had observed, there is no scope for importing into the language of Article 134 any general principles which may be more