The legal principle establishes that a transfer by the mortgagee must exceed the mortgage interest to invoke limitation under the applicable statutes.

1 The plaintiff, whose suit for redemption has been dismissed by the learned Additional District Judge of Parur, is the Appellant before me. The short point that arises for consideration is as to whether the suit is barred by limitation under Art.122 of the Travancore Limitation Act, corresponding to Art.134 of the Indian Limitation Act prior to its amendment in 1929.

2 The plaintiff filed the suit for redemption of a usufructuary mortgage dated 25-6-1086, Ext. A, executed by one Meethian who was then holding a kanom right in respect of the properties. Several defences were raised by the defendants as to the right of the plaintiff to redeem, namely, that there was an oral surrender of the mortgage right and, therefore, Ext. A has got itself extinguished. It was also contended that the plaintiff does not derive any title to redeem the mortgage, Ext. A. On both these points, the Trial Court, as well as the appellate court, have concurrently held against the defendants. The only point on which both the courts have differed is as regards the suit being barred by limitation under Art.122 of the Travancore Limitation Act.

3 The Trial Court was of the view that the documents relied upon by the plaintiff did not in any way bring the case within the ambit of Art.122. Further, the Trial Court also held that there is no evidence to show that the defendants enjoyment as owners was brought to the notice of the mortgagor or his legal representatives. Probably, the latter reasoning of the Trial Court may not be correct in law.

4 The learned District Judge was of the view that the recitals in Exts. E, III and V clearly show that the rights of full owner were being transferred under those documents and therefore the suit will be barred by virtue of Art.122. The question is whether the decision of the learned District Judge on this question of limitation is correct. Mr. Mohamad Naha, learned counsel for the appellant, has attacked the reasoning of the learned District Judge and has taken me through the various recitals in Exts. E. III and V. He has also contended that the reasoning of the District Judge cannot be supported in view of my judgment reported in Yohannan v. Ummen (1957 KLJ 1196). On the other hand, Mr. Madhavan Nair and Mr. Vadakkel, learned counsel appearing for the two defendants respondents, separately, have maintained that the recitals in Exts. E, III and V clearly bring into operation the provisions of Art.122 of the Travancore Limitation Act.

5 In order to appreciate the contentions of both the learned counsel a few dates with reference to the transactions may be useful.

6 The properties belonged originally to an Illom called Mylakkodath Illom and they granted a kanom right on 1st Karkidakam 1078 in favour of one Ahamedkunju Meethian. On 25-6-1086 under Ext. A, this Meethian executed a usufructuary mortgage in favour of one Chacko Raphael.

7 On 12-3-1087 Mylakkodath Illom executed a sale of their jenmom right under Ext. F to Chacko Raphael who was the usufructuary mortgagee under Ext. A. This sale deed Ext. F clearly recites that the properties are subject to a kanom right in favour of Ahamadkunju Meethian. As Chacko Raphael was indebted to the Puthenchira church by virtue of certain transactions, the church filed a suit OS 238 of 1099 in the District Munsiffs Court, Perumpavoor, and obtained a decree on the basis of Exts. B and C, namely, the simple mortgages executed by Chacko Raphael.

8 The church obtained a sale certificate Ext. II; the said sale certificate, also shows that it is only the rights of Raphael that have been brought to sale and purchased by the church. Even otherwise this sale certificate, Ext. II, need not detain me any further because it is not the case of the defendants that limitation starts by virtue of this sale. The learned District Judge also has held that what the church purchased was only the right, title and interest of Chacko Raphael which was jenmom right and the rights in the decree in O.S. 765 of 1085