The main legal point established in the judgment is that a person paying off a mortgage may be entitled to be subrogated to the rights of the mortgagee, and the running of time against the mortgagor in cases of adverse possession depends on the nature of the possession and its impact on the mortgagor's rights.

1. In 1853, the karnavan of the Mootha Chettiam Veetil tarwad executed a usufructuary mortgage-deed in favour of one Kuttiassan. In 1871 the assignee of the mortgagee executed a surrender deed, Ex. 3, in favour of one Chappan, who claimed to be the karnavan of the M tarwad. It appears however that two bodies of people claimed to constitute the M tarwad and two rival karnavans (the plaintiffs and defendant 1) claimed the equity of redemption of the mortgage on behalf of those two bodies. In the suit it has been established by evidence to the satisfaction of the trial Court and the first appellate Court that the present plaintiff has the rights of the mortgagor and that defendant 1, who actually purported to redeem the mortgage, had no right at all to do so. It has also been established that as long ago as 1878 the plaintiff was aware of the fact that defendant 1 was holding the land, not merely as one who had acquired rights from the original mortgagee, but as the full owner of the property. In second appeal, Wadsworth, J. agreed with the lower appellate Court that although defendant 1 had no right to redeem, his long possession over a period greater than 12 years had established his title to the property by adverse possession. In this Letters Patent appeal, the plaintiff contends that although defendant 1 was eventually found not to be the owner of the equity of redemption, yet his act in paying off the mortgagee entitled him to be subrogated to the rights of the mortgagee, that the plaintiff was not entitled to possession without redeeming the mortgage, and that as the plaintiff was allowed 60 years to redeem the mortgage, his suit was in time.

2. The principal points raised in this appeal were scarcely discussed at all before our learned brother, and so we have not been given the benefit of his considered finding on the matters argued before us. He was however of opinion that the act of defendant 1 extinguished the mortgage, as it was clear that it was not his intention to keep the mortgage alive, and that as soon as the mortgage was extinguished adverse possession began to run. The first case quoted for this purpose in Second Appeal was Bijai Bahadur v. Parameshwari Ram AIR 1924 All 834, where this question receives no discussion at all and is disposed of in these few words:

It cannot be said by their redemption effected by means of the award, they became transferees or assignees of the mortgagees rights.

3. There can be no doubt that this statement is correct; but it does not follow that because defendant 1 is not a transferee or assignee of a mortgage right, he is not entitled in equity to be subrogated to those rights. The only other case quoted in second appeal on this point was Peria Aiya Ambalam v. Shanmugasundaram AIR 1914 Mad 334, a case in which a trespasser dispossessed the mortgagee in possession and continued in possession himself, asserting a title adverse to the mortgagor also; and it was held that time began to run against the mortgagor from the time that he came to know that the trespasser was setting up a claim adverse to the mortgagor. Mr. Kuttikrishna Menon for the appellant at first argued that any person who pays off the mortgage is entitled to be subrogated to the rights of the mortgagee; but so wide a proposition has nowhere found support. It is true that in Syamalarayudu v. Subba Rayudu (1898) 21 Mad 143, the proposition that a person paying off a mortgage was entitled to be subrogated to the mortgagees rights was laid down very broadly; but there was no diseussion as to the circumstances under which such a right would accrue to a person paying off a mortgage debt. That case was rather an extreme one in which the person who paid off the debt acted fraudulently, and it has nowhere been followed without qualification. Syamalarayudu v. Subba Rayudu (1898) 21 Mad 143 was approved in Chamaswami v. Padala Anandu (1908) 31 Mad 439; but it was pointed out that a trespasser or volunteer was not entitled