Venkatarama Ayyar, J.- This appeal arises out of a suit for redemption instituted by the respondent. The properties which are the subject-matter of this litigation consist of two plots, Survey No.61 and Survey No.115, in the Village Tirumehoor in the District of Mathurai. They belonged to two brothers Solamalai Pillai and Vaduhanatha Pillai. On 7th August, 1890, Solamalai Pillai executed a usufructuary mortgage for Rs.100 over Survey No.115 in favour of one Srinivasa Iyengar, Exhibit D-1. On 5th May, 1892, Solaimalai Pillai and Vaduhanatha Pillai executed a usufructuary mortgage Exhibit P-I over both Survey No.61 and Survey No. 115 in favour of one Venkatadri Iyengar for Rs.500 directing him 10 redeem the mortgage Exhibit D-I in favour of Srinivasa Iyengar. The present action is for the redemption of this mortgage. Venkatadri Iyengar got into possess on of Survey No. 61 under this mortgage and before the time for redeeming Exhibit D-I had arrived, he executed on 5th January, 1893, a sub-usufructuary mortgage over both the items in favour of one Kandaswami Achari for Rs.175, Exhibit D-2. On 21st December, 1893, Venkatadri Iyengar borrowed a further sum of Rs.50 from Kandaswami Achari on a simple mortgage of his mortgage rights, under Exhibit P-I. Kandaswami sued to enforce this simple mortgage in O.S.No.146 of 1898 on the file of the Court of the District Munsif, Tirumangalam, obtained a decree on 21st April, 1898, Exhibit D-3 and in execution of the decree purchased the hypotheca on 1st November, 1898 (Vide the sale certificate, Exhibit D-4) and got into possession of Survey No.61. One of the points in controversy between the parties in this litigation is as to what was actually sold in execution of the decree in O.S. No.146 of 1898 on the file of the District Munsif’s Court, Tirumangalam, whether it was only the mortgage right under Exhibit P-I or the properties themselves which were mortgaged thereunder. Kandaswami as purchaser under Exhibit D-4 instituted O.S.No.591 of 1899 on the file of the Court of the District Munsif, Mathurai for redeeming the usufructuary mortgage over Survey No.115, Exhibit D-I. The defendants to this action were the two sons of this original mortgagee Srinivasa Iyengar who was by this time dead; and also Solamalai Pillai and Vaduhanatha Pillai. The sons of the mortgagee pleaded that Solamalai Pillai had redeemed them and that they had no further interest in the property. The sons of the mortgagee pleaded that Solamalai Pillai had redeemed them and that they had no further interest in the property. Solamalai Pillai and his brother were ex parte. On 19th March, 1900, the Court decreed redemption on payment of Rs.100 to Solamalai Pillai within two months. The amount was paid on 8th May, 1900 (Exhibit P-2) and possession was taken through Court on 8th August, 1900, Exhibit, D-5.(c). In execution of a decree passed against Kandaswami in Small Cause Suit No.1269 of 1910 on the file of the Court of the Subordinate Judge of Mathurai, his interest in the two items was brought to sale and purchased by one Balaguru Naidu. (Vide Sale Certificate, Exhibit D-11). He got into possession of the properties and on 14th June, 1922, he sold them to one Rajammal for a sum of Rs.900, Exhibit D-14. On 29th January, 1926, Rajammal released her interest in favour of one Alagaraswami Naidu, Exhibit D-16 and he in turn sold the properties to the defendant on 23rd March, 1940, under Exhibit D-20. On 19th August, 1943, the respondent who is the son of Solamalai Pillai instituted the suit out of which the present appeal arises for redeeming the usufructuary mortgage Exhibit P-I. The plaint alleges that in execution of the decree in O.S.No.146 of 1898 on the file of the Court of the District Munsif of Tirumangalam it was only the mortgage right under Exhibit P-I that was brought to sale; that under Exhibit D-4 what passed to Kandaswami was only the mortgage right under that document; that it was only that mortgage interest that passed to Balaguru Naidu under Exhibit D-II; that as purchaser from him under Exhibit D-14 Rajammal could acquire only the mortgage interest to which her vendor was entitled; that likewise, the defendant as purchaser from Rajammal under Exhibit D-20 acquired only that mortgage interest and that, therefore the plaintiff as representing the mortgagor Solamalai Pillai was entitled to a decree for redemption. The defendant pleaded that what was sold in execution of the decree in O.S.No.146 of 1898 was not merely the mortgage right under Exhibit P-I but the properties themselvses; that under the Sale Certificate Exhibit D-4 Kandaswami acquired full ownership over the properties; that Exhibit D-11 conveyed that absolute title to Balaguru Naidu; that the purchasers under Exhibit D-14 and D-20 thus became owners of the property and not merely assignees of the mortgage interest under Exhibit P-1 and that the plaintiff had no right to redeem. It was further contended that as the defendant and his predecessors-in-title had been in possession as full owners of the properties from 8th August, 1900 (Vide Exhibit D-5 (c)), they had acquired a tide by adverse possession and that in any event the suit was barred by Article 134. of the Limitation Act. The District Munsif of Mathurai Taluk held on a construction of Exhibit D-4 that what was sold in Court auction in execution of the decree in O.S. No. 146 of 1898 was not merely the mortgage right under Exhibit P-1, but the properties themselves and that, therefore the title of the mortgagor had been extinguished by the sale. On the question of limitation he held that Article 134 would not be applicable as there was no transfer by the mortgagee of the hypotheca, but only a Court sale. But he also held that as Kandaswami and his successors had been in possession as absolute owners for a period of over 40 years, they had acquired a title by adverse possession. In that view he dismissed the suit. On appeal by the plaintiff the District Judge agreed with the District Munsif that Exhibit D-4 conveyed not merely the mortgage right over the properties themselves absolutely and that the title of the mortgagor had been extinguished. In this view he did not consider it necessary to express any opinion on the question of limitation. The appeal was accordingly dismissed. The plaintiff preferred Second Appeal No.416 of 1946 against the decision and that was heard by Satyanarayana Rao, J. He held that on a proper construction of Exhibit D-4 what was sold was only the mortgage interest under Exhibit P-1 and that, therefore the Court auction did not put an end to the right of the mortgagor to redeem. The plaintiff preferred Second Appeal No.416 of 1946 against the decision and that was heard by Satyanarayana Rao, J. He held that on a proper construction of Exhibit D-4 what was sold was only the mortgage interest under Exhibit P-1 and that, therefore the Court auction did not put an end to the right of the mortgagor to redeem. On the question of limitation, he held that no question of adverse possession could arise as between mortgagor and mortgagee; and dealing with Article 134 of the Limitation Act, he held that it did not apply to Court sales under Exhibits D-4 and D-11 and that though the sale under Exhibit D-14 would be a transfer under Article 134, it would not be a transfer by the mortgagee under Exhibit P-1, but by persons who had succeeded to his rights and that Article 134 had no application to such transfers. In the result, he held that the suit was within time under Article 148 and granted a decree for redemption. Against, this judgment the defendant has preferred the present appeal under the Letters Patent. The first question for determination in this appeal is whether Kandaswami acquired full ownership over the properties by reason of the Court sale in execution of the decree in O.S.No.146 of 1898 on the file of the Court of the District Munsif,, Tirumangalam, and whether the right of the mortgagor to redeem Exhibit P-1 was extinguished thereby. Under section 60 of the Transfer of Property Act the right of redemption can be extinguished only by act of parties or decree of Court. No question of any act of parties terminating the right of redemption arises here. The question is whether it has been extinguished by a decree of Court. In Raghunath Singh v. Hansraj Kunwar1, it was held that the decree of Court contemplated in this section is the final decree in a mortgage action foreclosing the mortgagor of his right to redeem. Vide also Chinna Subba Rao v. Mattapalli Raju2. Admittedly no suit was filed on the basis of Exhibit P-1 for redemption or for foreclosure. In Raghunath Singh v. Hansraj Kunwar1, it was held that the decree of Court contemplated in this section is the final decree in a mortgage action foreclosing the mortgagor of his right to redeem. Vide also Chinna Subba Rao v. Mattapalli Raju2. Admittedly no suit was filed on the basis of Exhibit P-1 for redemption or for foreclosure. The contention of the appellant is that it is open to a sub-mortgagee in an action to enforce his mortgage to obtain a decree foreclosing the right of not merely his mortgagor but also of the main mortgagor to redeem; that in O.S.No.146 of 1898, Solamalai Pillai, the owner, was impleaded as second defendant obviously for the purpose of giving him an opportunity to exercise his right of redemption and that the decree Exhibit D-3 and the sale thereunder would operate to extinguish the right of redemption in respect of Exhibit P-1. That a sub-mortgagee can sue to foreclose the right of not merely his mortgagor but of also the owner ,is well-settled, vide Vengannan Chettiar & Sons v. Ramaswami Pillai3, and a final decree passed in such an action would operate to extinguish the right of redemption. But the question is, was such a decree passed in O.S.No.146 of 1898. The plaint in that suit has not been filed and it is not known why Solamalai Pillai was impleaded as a party. But the decree Exhibit D-3 makes it clear that he was only a pro forma party to the action. Exhibit D-3 mentions the amount due to the sub-mortgagee from his mortgagor and directs that in default of payment the ‘hypothecated property’ should be sold and that any balance remaining after payment of the amount due to the plaintiff should be paid to the first defendant who was the son of the mortgagee. There is no adjudication of the rights of parties under Exhibit P-1. The amount due by Solamalai Pillai to the first defendant is not declared; no period is fixed for his redeeming Exhibit P-1; and there is no provision for’ any payment of surplus sale proceeds to him. In Vengannan Chettiar & Son. v. Ramaswami Pillai1, discussing the rights of sub-mortgagees against the original mortgagor, the Chief Justice observed as follows: “A sub-mortgagee has two courses open to him. In Vengannan Chettiar & Son. v. Ramaswami Pillai1, discussing the rights of sub-mortgagees against the original mortgagor, the Chief Justice observed as follows: “A sub-mortgagee has two courses open to him. He can, if he wishes, limit his suit to the submortgagor, in which case he can only ask for the sale of the sub-mortgagor’s interest in default of payment of the decretal amount. On the other hand, he may join the original mortgagor, and ask for a decree for the sale of the mortgaged property in default of payment. In this case the relief to which he is entitled is to be gathered from Form No. XI in Appendix D to the Civil Procedure Code. In that form the original mortgagor is described as defendant No.1 and the original mortgagee as defendant No.2. The form provides for a declaration of the amount due to defendant No.2 on his mortgage and then directs that defendant No. I shall pay into Court he amount due to defendant No. a and that on payment into Court of the money the plaintiff shall be at liberty to apply for payment out. In default of payment, the plaintiff may apply to the Court for a final decree for sale. The form also provides that if defendant No.2 pays into Court to the credit of the suit the amount adjudged due to the plaintiff, but defendant No.1 makes default in the payment of the amount due to defendant No. 2, the latter shall himself be at liberty to apply to the Court for a final decree for sale.” In O.S.No.146 of 1898 Kandaswami plainly chos6 to adopt the first course and the decree Exhibit D-3 is the one appropriate for such a course. It is not in conformity with Form No. XI in Appendix D to the Civil Procedure Code. Indeed at the time of Exhibit D-3 Solamalai could not have exercised his right of redemption of Exhibit P-1 as the period fixed for redemption had not expired. It is not in conformity with Form No. XI in Appendix D to the Civil Procedure Code. Indeed at the time of Exhibit D-3 Solamalai could not have exercised his right of redemption of Exhibit P-1 as the period fixed for redemption had not expired. In MuthuVijaya Mahali Dhurai v. Venkatachalam Chetti2, in affirming the right of a sub-mortgagee to obtain a decree for sale against the original mortgagor, Subramania Ayyar, J. observed: “A sub-mortgagee can ask for a sale of the original mortgagor’s interest in case; and in circumstances which would have entitled the original mortgagee on the date of the sub-mortgage to claim such relief.” There cannot be any doubt, therefore that Exhibit D-3 could not be read as declaring the right of redemption in respect: of Exhibit P-1 and that neither the decree nor the execution proceedings in pursuance thereof could operate; to extinguish the right of the mortgagor to redeem Exhibit P-1. It is argued that according to the sale certificate Exhibit D-4 the properties sold were the lands themselves and not merely the mortgage right over them and that the mortgagor who was a party to the suit could not claim any rights in opposition thereto. But if Exhibit D-4 is read in the light of the decree, it can be construed only as transferring the interest under Exhibit. P-1. No doubt, both the items of lands are described, but that is only for precise identification of the mortgage which is what is actually sold and that is described as “the right (in respect of) the usufructuary mortgage for Rs.500 (regarding the properties aforesaid in favour of the father of the first defendant by the second defendant,) subject to the submortgage for Rs.175 in favour of the plaintiff by first defendant’s father”. The reference to the property as being subject to the sub-mortgage for Rs.175 Exhibit D-2 can only mean the usufructuary mortgage and not the equity of redemption. Moreover, if the right of redemption could be extinguished under ‘section 60 of the Transfer of Property Act only by a decree for foreclosure and if the decree passed is not one of foreclosure, it is difficult to see how proceedings taken in execution of that decree could extinguish the right of redemption. Moreover, if the right of redemption could be extinguished under ‘section 60 of the Transfer of Property Act only by a decree for foreclosure and if the decree passed is not one of foreclosure, it is difficult to see how proceedings taken in execution of that decree could extinguish the right of redemption. It is also argued that in the plaint in O.S.No.591 of 1899 Kandaswami claimed that he had become the owner of the properties by reason of his purchase under Exhibit D-4 that Solamalai who was defendant No.3 did not traverse it, but remained ex parte that under the decree passed in that suit Solamalai was treated as standing in the shoes of the mortgagee Srinivasa Iyengar and redeemed by Kandaswami on payment of Rs.100 and that possession was also taken from Solamalai in execution of this decree. No significance can be attached to this as on the date of the decree Solamalai had no right to redeem Exhibit P-1. Nor can what happened in that suit affect the true effect of the purchase by Kandaswami under Exhibit D-4. We accordingly agree with Satyanarayana Rao, J., that what was sold under Exhibit D-3 and purchased under Exhibit D-4 was only the mortgage rights under Exhibit P-I and that plaintiff has not lost his right to redeem the same by reason of the proceedings in O.S.No. 146 of 1898, District Munsif’s Court, Tirumangalam or O.S.No.591 of 1899, District Munsif’s Court, Mathurai. It is next contended on behalf of the appellant that the suit is barred by limitation either under Article 134 or under Article 14 of the Limitation Act. Article 134 in so far as it is material for the present appeal runs as follows:- “To recover possession of immovable property mortgaged and afterwards transferred by the mortgagee for a valuable consideration 12 years when the transfer becomes known to the plaintiff”. As to the nature of the transfers to which this Article is applicable the Privy Council observed in Skinner v. Naunihal Singh1, as follows: “The transfer of property mortgaged contemplated by Article 134 is admittedly something other than an express transfer of the original mortgage. As to the nature of the transfers to which this Article is applicable the Privy Council observed in Skinner v. Naunihal Singh1, as follows: “The transfer of property mortgaged contemplated by Article 134 is admittedly something other than an express transfer of the original mortgage. The Article contemplates a transfer by a mortgagee purporting to transfer a larger interest than that given by the mortgage or at any rate an interest unencumbered by a mortgage.” For the Article to apply, therefore, there must be a transfer by a mortgagee and that transfer must be in his assumed character as owner and not as mortgagee. Transfer as defined in section 5 of the Transfer of Property Act means an act by which one person conveys property to another and it has accordingly been held that sales in invitum are outside the scope of Article 134 and that purchasers of the interest of a mortgagee in Court auction sale cannot claim the benefit; of that Article. Vide Ahmed Kutti v. Raman Nambudiri2, Mahanth Sudarsan Das v. Mahanth Ram Kripal Das3. Therefore, even construing Exhibit D-4 as purporting to convey the full ownership in the lands and not merely the mortgage rights under Exhibit P-1, it does not fall within the purview of the Article 134, nor the purchase by Balaguru Naidu in execution of the decree against Kandaswami, Exhibit D-11. Coming next to Exhibit D-14, that was a sale by Balaguru Naidu to Rajammal and it purports to convey the full ownership of the lands to the purchaser; and it is clearly a transfer within the meaning of Article 134. The appellant contends that limitation commences under Article 134 on 14th June, 1922, the date of Exhibit D-4, and the present action for redempti6n which was instituted on 19th August, 1943, is barred by limitation. The answer of the respondent to the contention is that Article 134 is in terms limited only to transfers by mortgagees and not by their representatives-in-interest: that as Exhibit D-14 is a sale not by Venkatadri Iyengar, the original mortgagee, but by Balaguru Naidu who stepped into the shoes of the mortgagee through two Court auction sales (Exhibits D-4 and D-11), a transfer by him is outside the scope of Article 134 and that therefore, the suit is within time under Article 148 of the Limitation Act. This argument found favour with Satyanarayana Rao, J., who held, agreeing with the decision in Munawar Ali v. Jagmilan Ram4, that the sale by Balaguru under Exhibit D-14 was not protected by Article 134. He observed: “In my opinion, therefore, the Article has no application to the case of a private purchaser from the Court auction purchaser of a mortgagee’s interest. No doubt he might have acquired the mortgagee’s interest, but he cannot be treated as a mortgagee within the meaning of Article 134, and for its application”. The appellant disputes the correctness of this view and contends that ‘mortgagee’ in Article 134 must be construed as including the representatives-in-interest of the mortgagee and he cited the decision in Ghasi Ram v. Kishna1, Abdul Aziz v. Munni Lal2and Kannuswami Thanjirayan v. Muthuswami Pillai3, in support of his position. In Ghasi Ram v. Kishna1, one Shambu executed a usufructuary mortgage in favour of one Hulasi on 6th September, 1856. In execution of a decree against Hulasi the mortgage was sold and purchased by one Ghasi in 1877. On nth December, 1898, Ghasi sold his rights to one" Likhi purporting to be full owner. The heirs of the mortgagor sued to redeem the mortgage dated 6th September, 1856 and it was contended on their behalf that Article 134 was inapplicable because the transfer was not by the mortgagee Hulasi, but by his representative-in-interest Ghasi. In overruling this contention Chamier, J., observed: "It is contended that Article 134 does not apply to the case, because defendant 4 to 7 did not purchase from the original mortgagee of the property. It is conceded that a purchaser from the son or other heir of the original mortgagee of the property would be entitled to rely upon Article 134, but it is contended that a person who purchases from the auction-purchaser of the rights of the original mortgagee is not entitled to rely upon that Article. Several cases, supposed to been upon this question have been cited to me; but on examination they are all found to be totally irrelevant, and it is useless to discuss them. I have no hesitation in holding that a person who purchases by private treaty from an auction-purchaser of the rights of the original mortgagee is entitled to rely upon Article 134. The auction-purchaser of the rights of the mortgagee steps into the shoes of he mortgagee". I have no hesitation in holding that a person who purchases by private treaty from an auction-purchaser of the rights of the original mortgagee is entitled to rely upon Article 134. The auction-purchaser of the rights of the mortgagee steps into the shoes of he mortgagee". This decision was followed in Abdul Aziz v. Munni Lal2, where Dalai, J., observed: "In my opinion, the law is clear on the point that if Munni Lal had been in possession for 12 years after purchase or if any of his predecessor-in-interest had been a purchaser by private treaty from an auction-purchaser, the suit would have been barred. The ruling of a single Judge reported in Ghasi Ram v. Kishna1, is well supported by authority such as the case reported in Venku Shettithi v. Ramachandraya4 ". In this Court there is a decision of a Bench reported in Kannuswami Thanjirayan v. Muthuswami Pillai3, directly dealing with this point. The facts of that case were that the owner of the suit property had executed a usufructuary mortgage over it in 1885; that was sold in execution of a decree against the morgagee. Against the purchaser in that execution, a rent decree was passed and in execution of that decree, his interest was sold in Court auction in 1893. The purchaser under this Tent sale sold the property in 1896 as absolute owner under Exhibit 3 and the purchaser under Exhibit 3 sold the properties in turn to the defendant in the suit in 1906. The suit for redemption was instituted in 1911. The defendant pleaded that it was barred by limitation under Article 134. It was held by this Court that while the Court auction sales would not be governed by Article 134., the sale under Exhibit 3 by the Court auction-purchaser in 1896 fell within the scope of that article and that the suit which was laid more than 12 years from that date was barred. The following observations of Spencer, J., may be quoted: "Against that, it is argued that the purchaser of the mortgagee’s interests is not himself a mortgagee within the meaning of the article. The following observations of Spencer, J., may be quoted: "Against that, it is argued that the purchaser of the mortgagee’s interests is not himself a mortgagee within the meaning of the article. In a similar case decided by Chamier, J., in Ghasi Ram v. Kishna1, it was held contra that the auction-purchaser of the rights of the mortgagee steps into the shoes of the mortgagee and that the subsequent purchasers by private treaty from the auction-purchaser can rely on Article 134 to defeat a plaintiff seeking to redeem... I am, therefore, of opinion that as 12 years have elapsed since the date of the transfer under Exhibit III the suit is time-barred under Article 134". This decision, it must be stated, was not brought to the notice of the learned Judge whose Judgment is now under appeal. The respondent relies on the decision in Munawar Ali v. Jagmilan Ram5. There, the Court auction-purchaser of a mortgagee’s interest purported to sell the property as absolute owner and the purchasers resisted the suit for redemption on the ground that it was barred under Article 134. In rejecting this contention, Iqbal Ahmed, J., observed as follows: “I am unable to agree with the Lower Appellate Court as to the applicability of Article 134 to the present case. Article 134 is limited to the cases where the property mortgaged has been transferred by the mortgagee for a valuable consideration. That Article applies only to cases where a transferee for value from a mortgagee takes that which is de facto mortgage upon a representation made to him and in the full belief that it is not a mortgage, but an absolute title. That Article, in my opinion, cannot protect persons who are not transferees from the mortgagee, but are transferees from persons other than the mortgagees or their heirs”. These observations undoubtedly support the contention of the respondent. But it has to be observed that no reference is made in the Judgment to the earlier decision of Chamier, J., in Ghasi Ram v. Kishna1, or to the decision of this Court Kannuswami Thanjirayan v. Muthusami Pillai2, where it was approved. It must be mentioned that in Munawar Ali v. Jagmilan Ram3, the suit for redemption was in the result dismissed as barred under Article 144, though Article 134 was held inapplicable and this conclusion was based on the decision in Ram Piari v. Budh Sen4. It must be mentioned that in Munawar Ali v. Jagmilan Ram3, the suit for redemption was in the result dismissed as barred under Article 144, though Article 134 was held inapplicable and this conclusion was based on the decision in Ram Piari v. Budh Sen4. There, the facts were that there was a usufructuary mortgage in 1861; in 1889 the usufructuary mortgagee executed a mortgage as if he were the owner. This mortgagee filed a suit to enforce his mortgage, obtained a decree, and purchased the property in Court auction in 1902 and then sold the properties as abslolute owner under two sale deeds dated 1904 and 1905. A suit for redemption was filed in 1915 and the question was whether it was in time. The contention that it was barred under Article 134 was rejected, the Court observing “Article 134 is excluded by the fact that the vendors of the defendants had not purchased from the mortgagee” But it was held that the defendants had acquired a title by adverse possession and a suit was in consequence barred under Article 144. Then dealing with the contention that under Article 148 the mortgagor had a period of 60 years for redeeming the mortgage, the Court observed: “where the property mortgaged is passed from the mortgagee to a third party who has obtained’ rights thereunder for valuable consideration in good faith and in full belief that he was purchasing the transferor’s proprietory interest and the transferor represented that he held that proprietory interest it cannot be said that such a transfer is a transfer of the mortgage interest so as to render Article 148 of the Indian Limitation Act (IX of 1908) applicable.....Article 148 cannot therefore, apply to the present suit and if that Article does not apply, the only other possible Article-that can apply is Article 144”. This decision is thus a clear authority for the position that when the transfer does not purport to be an assignment of the mortgage, but an out and out sale, the transferee is not a mortgagee within the meaning of Article 148 and that a suit against such a transferee is not one for redemption governed by Article 148, but one for ejectment governed by Article 144 and that the title of the mortgagor could be extinguished by adverse possession of the transferee. This decision was approved by a Bench of this Court in Natesa Thevar v. Narayanaswami Padayachi.5 In that case there was a usufructuary mortgage dated 14th February, 1891. The mortgagee executed two simple mortgages on which suits were instituted by the sub-mortgagees and in execution of the decree obtained by them the properties were sold in 1902 and 1904. The Court auction-purchasers sold the properties as absolute owners in the year 1913 and the defendant in the suit was a representative-in-interest of that purchaser. A suit for redemption instituted in 1946 was held by the Courts below to be barred under Article 134. In this Court a contention was raised that Article 134 was inapplicable to a transfer by a person who was not the original mortgagee and reference was made to the decisions in Munawar Ali v. Jagmilan Ram3, Ghasi Ram v. Kishna1, Abdul Aziz v. Munni Lal6 and Kannuswami Thanjirayan v. Muthusami Pillai2. The learned Judges noticed the conflicting views expressed on the question, but did not consider it necessary to pronounce any decision on it, as the auction-purchasers, and their transferees, in the case before them, could not be considered to be mortgagees. This is what they stated: “It has to be observed that in Kannuswami Thanjirayan v. Muthusami Pillai1, what was acquired by the auction-purchasers was only the mortgage rights and not the absolute title o the properties mortgaged. Whatever justification there might be for characterising the auction-purchaser in such a case as one stepping into the shoes of the mortgagee, none exists in a case, as in the present one where the auction-purchasers acquired full ownership in the suit properties and not a limited mortgage right and therefore, could not be called mortgagees within the meanings of Article 134, They never occupied such a position with reference to the suit properties, they having purported to have purchased not the limited mortgage interest but the whole interest in the property. The expression ‘mortgagee’ cannot include a person who has acquired full interest in the property and not the limited mortgage right". In the view that the auction-purchasers and their representatives were not mortgagees, it was held that Article 144 would apply and that that would exclude Article 148. The decision in Ram Piari v. Rudh Sen2, was followed and the case was remitted for a finding on the question of adverse posses ion. In the view that the auction-purchasers and their representatives were not mortgagees, it was held that Article 144 would apply and that that would exclude Article 148. The decision in Ram Piari v. Rudh Sen2, was followed and the case was remitted for a finding on the question of adverse posses ion. It is argued for the appellant on the bais of the decisions in Ram Piari v. Budh Sea2and Natesa Thevar v. Narayanaswami Padayachi3, that the present suit is governed by Article 144 and that it is barred by adverse possession commencing from 1900 as found by the District Munsif. We entertain considerable doubt as to the soundness of the decision in Ram Piari v. Budh Sen2, that Article 148 will apply only when the person sought to be redeemed is a mortgagee or his assignee and that where the transfer by the mortgagee purports to convey an absolute interest the transferee is not a mortgagee liable to be redeemed under that Article. Whatever the parties to the transaction might believe in or declare, no person can confer or his transferee a title better than his own; and if in fact his interest is only that of a mortgagee, his transferee can succeed only to that interest, notwithstanding that the deed purports to transfer full ownership to his; and his rights and obligations under the transfer will only be that of a mortgagee. To take the converse case, if a mortgagee purports to sell the hypotheca as owner, and before the lapse of 12 years from the date of sale the mortgagor seeks to recover possession from the purchaser, can he do so without paying the mortgage amount ? Can he say that as the transferee claims to be a purchaser and not an assignee of a mortgage, he is not a mortgagee and has therefore no right to ask for the payment of the mortgage amount; and that as the sale deed was inoperative to confer title as owner and is no title has been acquired by prescription, he was liable to be ejected as a trespasser? The answer is simple. The answer is simple. The transfer by the mortgagee as owner does not operate as a discharge of the mortgage by the mortgagor and the transferee is entitled as against the mortgagor at least to what his transferor was entitled If he is then entitled as against the mortgagor to the rights of the original mortgagee, is he not also subject to the obligations of his transferor in favour of the mortgagor? The real question in such cases is not what the transferee purported to acquire, but what in fact he did acquire and if what he did acquire was only the interest of the mortgagee, he is liable under the law to be redeemed as a mortgagee and Article 148 will apply. In Skinner v. Kurwar Naunihal Singh4, the facts were that one T. Skinner executed a usufructuary mortgage in September, 1863. He died in 1864 leaving behind a will by which he bequeathed his estate to his three sons in succession for life with a remainder in fee simple to his daughter. Believing himself to be absolutely entitled to the estate, one of the sons T. B. Skinner renewed the mortgage of 1863 in 1867 and in 1872 his interest in the estate was sold in execution of a money decree and purchased by the mortgagee. Believing that he had become entitled to the estate as absolute owner, his successor-in-interest sold that estate on 24th September, 1903 to the Nawab of Rampur who in turn sold it to the defendant in 1904. After the death of the three sons, the daughter filed a suit for redemption on nth May, 1920. The High Court of Allahabad held that the suit was barred under Article 134. The Privy Council agreed that this Article applied, but they held that as limitation under that Article commenced to run during the life-time of a life estate holder, it did not under Article 140 avail against the remainder-man and there-fore, Article 134 did not bar the plaintiff. The Privy Council agreed that this Article applied, but they held that as limitation under that Article commenced to run during the life-time of a life estate holder, it did not under Article 140 avail against the remainder-man and there-fore, Article 134 did not bar the plaintiff. Then, holding that as the suit was laid within 60 years it was in time, that is under Article 148, the Privy Council observed: "It is conceded and is plain that Article 134 does not protect the transferee of a mortgagee by express transfer, and it appears to Their Lordships idle to suppose that it protects a person who has taken a transfer only of a mortgage, but has taken it without his knowledge mistakingly supposing that he was getting something better in circumstances like the present, where he cannot”maintain his superior title by reliance on any period of limitation. Resting as he does on the interest of mortgagee he is liable to be redeemed. The period of redemption began, it is true, in the life-time of T. Skinner..........But the statutory period runs for 60 years and had not expired when the plaintiff filed the present suit ". In the view of Their Lordships of the Privy Council, then, the fact that the transfer took the form of a sale and not assignment of a mortgage did not preclude the applicability of Article 148 and the liability of the transferee to be redeemed as a mortgagee. It may also be mentioned that the decision in Ram Piari v. Budh Sen1, is cited in the Judgment of the High Court in Naunihal Singh v. A.G. Skinner2, which was reversed on appeal in Skinner v. Naunihal Singh3. It is extremely doubtful whether Ram Piari v. Budh Sen1, could be regarded as good law. after the decision of the Privy Council in Skinner v. Naunihal Singh3. It is unnecessary to discuss this matter further, as we are of opinion that the present case is governed by Article 134, and that, therefore, Article 144 which is a residuary Article has no application. To understand the true scope of Article 134 it is necessary to read it along with Article 148. Article 148 provides a period of 60 years for redemption of a mortgage and Article 134 cuts down that period to 12 years when there is a transfer by the mortgagee. To understand the true scope of Article 134 it is necessary to read it along with Article 148. Article 148 provides a period of 60 years for redemption of a mortgage and Article 134 cuts down that period to 12 years when there is a transfer by the mortgagee. Article 134 is, therefore, an exception to Article 148. In both the Articles the same word mortgagee is used. It must clearly have the same meaning in both the Articles. If ‘mortgagee’ in Article 148 should mean only the original mortgagee, then the present action for redemption of Exhibit P-1 would not be maintainable as against the defendant who is purchaser from Balaguru. But if ‘mortgagee ‘in Article 148 includes, all persons who succeed to the interest of the mortgagee, it must bear that meaning under Article 134 as well and the appellant will be entitled to its benefit. If the defendant is under liability to be redeemed under Article 148, he is also entitled to the protection afforded by Article 134. Likewise, the right of a mortgagor to redeem under Article 148 is subject to the bar enacted in Article 134 in favour of a transferee. Section 59-A of the Transfer of Property Act provides that” references in this Chapter to mortgagors and mortgagees shall be deemed to include reference to persons deriving title from them respectively. This section which was introduced by the Amending Act of 1929 is only a statutory recognition of what had been already laid down as the law and under this definition, mortgagee for the purpose of redemption would include all persons who derive title from him and it is immaterial Whether that title is derived by sale in invitum or by private treaty or whether it is by act of parties or by operation of law. Therefore, Balaguru Naidu who acquired the interests of the mortgagee under Court sale must be held to be a mortgagee within the definition in section 59-A and would be a mortgagee both for the purpose of Article 148 and Article 134. Looking at the principle of the thing also, it is difficult to discover any reason -why the transferees from the mortgagees should be entitled to protection under Article 134 and not transferee from the representatives of the mortgagee. Indeed the need for protection is greater in the latter than in the former class of cases. Looking at the principle of the thing also, it is difficult to discover any reason -why the transferees from the mortgagees should be entitled to protection under Article 134 and not transferee from the representatives of the mortgagee. Indeed the need for protection is greater in the latter than in the former class of cases. Persons who take a transfer from the original mortgagee have the means of knowing and may be presumed to know that the transferor possesses only a mortgage interest in the property. But as time elapses, knowledge of the original mortgage would, have faded and purchasers are likely to be misled by long possession and might purchase the property in the belief hat the representative of the mortgagee was the full owner. That this is a serious possibility will be clear when it is remembered that the period provided for redemption is he longest prescribed for any suit in the Limitation Act. It is 60 years. As observed by Seshagiri Ayyar, J., in Muthaya Shetti v. Kanthappa Shetti1, Article 134 is really a branch of the law of prescription and the reason for giving the protection of the statute of repose is weightier in the case of the transferees from representatives of the mortgagee than in the case of transferees from the original mortgagee. In the result, we must hold that the transfer by Balaguru under Exhibit D-14 will fall within the scope of Article 134 and the appellant will be entitled to the protection afforded by it if the requirements of that Article are satisfied. The question is whether the plaintiff had, as required by Article 134; knowledge of the alienation under Exhibit D-14 and whether the suit was instituted after a period of 12 years from the date of such a knowledge. It is argued for the respondent that there is no averment in the written statement that the plaintiff or his predecessor-in-title had knowledge of the transfer and that therefore, the. plea of limitation must fail. That will be taking too technical a view of the pleadings. The defendant did distinctly plead that the suit was barred by limitation under Article 134. As for knowledge, the defendant pleaded that Kandaswami and his successor-in-interest had been to the knowledge of Solamalai and persons claiming under him, in adverse possession from 1900 onwards claiming title as owner. That will be taking too technical a view of the pleadings. The defendant did distinctly plead that the suit was barred by limitation under Article 134. As for knowledge, the defendant pleaded that Kandaswami and his successor-in-interest had been to the knowledge of Solamalai and persons claiming under him, in adverse possession from 1900 onwards claiming title as owner. Though these allegations were made in support of a title by adverse possession, they are sufficient to satisfy the requirements of Article 134. No issue was framed whether the suit was barred by Article 134, though the point is discussed in. the Judgment of the learned District Munsif. As observed by Satyanarayana Rao, J., ‘‘no attention seems to have been paid by either party to the third column of Article 134 and to establish that the knowledge was either within or without the period of 12 years." The appellant filed C.M.P.No.7017 of 1949 for admission of additional evidence in the appeal. The evidence sought to be admitted consists of documents and they are stated to have a bearing on the question of limitation. This Petition is opposed by the respondent. If additional evidence is to be admitted, the plaintiff must be given an opportunity to rebut it. Having regard to the fact that no issue was framed raising the question of limitation under Article 134, we think that in the interests of justice the parties should be given a fresh opportunity to adduce evidence on the point. We accordingly frame the following issue: Whether the plaintiff or his predecessors-in-title had knowledge of Exhibit D-14. and if so, was it more than 12 years prior to suit? The District Munsif of Madurai taluk will try this issue and submit his finding thereon within two months of the receipt of this order. Time for objection is two weeks. No order is necessary in C.M.P.No.7017 of 1949, as both the parties are given liberty to adduce all evidence bearing on the above issue. The District Munsif of Madurai taluk will try this issue and submit his finding thereon within two months of the receipt of this order. Time for objection is two weeks. No order is necessary in C.M.P.No.7017 of 1949, as both the parties are given liberty to adduce all evidence bearing on the above issue. In pursuance of the said order of the High Court, the District Munsif of Madurai Taluk at Madurai, submitted the following Finding:-By order dated 31st October, 1952 in the Letters Patent Appeal No.52 of 1949, this suit has been remanded to this Court by the High Court, calling for a finding on the following issue: Whether the plaintiff or his predecessors-in-title had knowledge of Exhibit D-14 and if so, was it more than 12 years prior to suit? 2. The facts which are necessary to be stated for the determination of the issue Ere these: Item I of the suit properties was othied on 7th August, 1890, by the father of the plaintiff acting for himself and as guardian of his then infant undivided younger brother Vaduganatha Pillai in favour of one Srinivasa Ayyangar, son of Deivasikamani Ayyangar of Tirumohoor, for a period of five years for a sum of Rs.100. The father of the plaintiff Solamalai Pillai acting for himself and as guardian of his infant undivided brother Vaduganatha Pillai again usufructuarily mortgaged both the plaint mentioned properties to one Venkatadri Iyengar of Tirumohoor for a period of 10 years. The abovesaid Venkatadri Iyengar, entered possession of the above said items and was in enjoyment of the same paying thirwa to the father of the plaintiff. The plaintiff alleges that as Venkatadri Iyengar was short of funds, he sub-mortgaged his usufructuary mortgage right in item No.2. in favour of one Kandasami Asari of Madurai on 5th January, 1893, in pursuance whereof Kandassami Asari above-said entered possession and was in enjoyment of the said second item and was paying thirwa to the father of the plaintiff. Venkatadri Iyengar also hypothecated his othi rights in items I and a under the usufructuary mortgage deed dated 5th May, 1892, in favour of Kandasami Asari for a sum of Rs.50. Venkatadri Iyengar also hypothecated his othi rights in items I and a under the usufructuary mortgage deed dated 5th May, 1892, in favour of Kandasami Asari for a sum of Rs.50. On 21st December, 1893, Kandasami Asari filed a suit on the foot of the hypothecation bond and obtained decree and he purchased the othi rights in items 1 and 2 of the said Venkatadri Iyengar under the usufructuary mortgage deed dated 5th May, 1892. The plaintiff alleges that the said sale was subject ot the sub-othi in favour of Kandaswami Asari. As Venkatadri Iyengar had failed to redeem the othi dated 7th August, 1890, in favour of Srinivasa Iyengar, in respect of item No. 1, the representatives of the said Srinivasa Ayyangar pressed the father of the plaintiff for payment, who paid off the othi amount and got possession of item No.1 from them. Kandasami Asari who had purchased the othi rights of Venkatadri Iyengar filed a suit against the representatives of the said Srinivasa Ayyangar and father of the plaintiff claiming that he was entitled to redeem the othi in favour of Srinivasa Ayyangar, and praying for possession of item No.1 upon payment of the othi amount of Rs.100. In that suit possession of item No.1 was decreed in favour of Kandaswami Asari upon payment of a sum of Rs.100 to the father of the plaintiff to whom Kandaswami Asari paid the said amount and obtained possession of item No.1. He was enjoying both the items paying theerwa to the plaintiff’s father as stipulated under the othi deed dated 5th May, 1892. The plaintiff further alleges in para 12 of the plaint that thereafter the othi rights in both the items appear to be the subject-matter of partition among the heirs of the said Kandaswami Asari and later to have been acquired by their creditors and at last they came to vest in one Alagarsami Naidu who gave a sub-othi in favour of one Soogai Pillai, who was in enjoyment of the said properties as sub-othidar. Both the father as well as the uncle of the plaintiff are dead and the right to redeem the suit properties vests in the plaintiff. Both the father as well as the uncle of the plaintiff are dead and the right to redeem the suit properties vests in the plaintiff. The plaintiff alleges that the defendant now claims to have acquired the property from Alagarsami Naidu and that he approached the defendant and Soogai Pillai with a request to accept the othi amount of Rs.500 and release the property from the othi dated 5th May, 1892. As the defendant was evading receiving payment, the plaintiff deposited into Court in O.P. No. 30 of 1943 under section 83 of the Transfer of Property Act and the said O.P. was dismissed as the defendant was not willing to receive the amount and as such the plaintiff was forced to file this suit. 3. The defendant filed a written statement. It is contended by him that Kandasami Asari became the full owner of the property and not merely purchasr of the othi right by virtue of the Court-sale. He has further contended that the question as to what was actually purchased by Kandasami Asari in Court auction in E.P.No.567 of 1898 has been concluded by the rule of res judicata. He has also raised the plea that the suit is barred under Article 134 of the Limitation Act. 4. The plaintiff and the defendant have let in both documentary and oral evidence. 5. The Defendant examined four witnesses to prove that the plaintiff or his predecessors-in-title had knowledge of Exhibit D-14 and it was more than 12 years prior to suit. D.W.1 is the executant of Exhibit D-20. D.W.1 Alagarsami Naidu’s wife Rajammal is the vendee under Exhibit D-14. This witness has deposed that Exhibit D-14 was got with his funds in the name of his wife and that his wife later on released the properties under Exhibit D-16 to him. He has deposed that his wife has purchased them from one Balaguru Naidu, that he went and saw the property before pruchasing, that he also informed the plaintiff and Vaduganatha Pillai about his intention and that the plaintiff and Vaduganatha Pillai said that they may purchase the property. Further this witness has deposed that plaintiff and Vaduganatha Pillai told him that they had only right of thirwa in the properties. This witness has filed several receipts issued by the plaintiff and Vaduganatha to him and Balaguru and others. Further this witness has deposed that plaintiff and Vaduganatha Pillai told him that they had only right of thirwa in the properties. This witness has filed several receipts issued by the plaintiff and Vaduganatha to him and Balaguru and others. The receipts represent the amount paid towards thirwa to the plaintiff, and Vaduganatha. It was argued by the learned counsel for the plaintiff that this alleged intimation to the plaintiff and Vaduganatha Pillai about D.W. i’s intention to purchase under Exhibit D-14 is only false and could not be believed. In support of this argument he picked up a sentence in the cross examination of D.W.1., "I did not tell Vaduganatha and the plaintiff in the chavadi that I intended to purchase in the name of my wife ". In my opinion, the entire evidence has to be looked into to see whether this witness D.W.1 informed the plaintiff and Vaduganatha about his intention to purchase under Exhibit D-14. On a reading of the entire evidence, it is clearly seen that D.W.1 informed the plaintiff and Vaduganatha about his intention to purchase under Exhibit D-14. Further P.W.1 has stated in the cross-examination that there is no enmity between him and D.W.1. If that be the case, I see no reason why this witness should come and give false evidence viz., that he informed the plaintiff and Vaduganatha about his intention to purchase. D.W.2 is the writer of Exhibit D-14. He has spoken about the plaintiff and another saying that D.W.1 may purchase the property. He deposes that both plaintiff and Vaduganatha were in the chavadi where Exhibit D-14 was written. No motive was attributed why the evidence of this witness should not be believed. So the evidence of this witness carries much weight and has to be accepted. 6. D.W. 3 has spoken about his enjoyment as lessee under Balaguru Naidu. In the cross-examination it was suggested that he is related to defendant and that he should not be believed. But there are absolutely no grounds for disbelieving the evidence of D.W.s 1 and 2. 7. Let us discuss the evidence of the plaintiff. 6. D.W. 3 has spoken about his enjoyment as lessee under Balaguru Naidu. In the cross-examination it was suggested that he is related to defendant and that he should not be believed. But there are absolutely no grounds for disbelieving the evidence of D.W.s 1 and 2. 7. Let us discuss the evidence of the plaintiff. The plaintiff as P.W.1 has stated that D.W. 1 did not inform him about his intention to purchase from Alagarsami Naidu and that the case put forward by the defendant that he informed him about his intention to purchase under Exhibit D-14 at the chavadi is false. The positive case of the plaintiff now is that he came to know of Exhibit D-14 only after the filing of the written statement by the defendant in this case. But this witness has stated in the chief examination, "I came to know of the sale in favour of the defendant when I received notice from the Tahsildar for transfer of patta. He has further staled that the Tirumohoor Devasthanam gave notice regarding the transfer of patta. He has stated thai the Devasthanam Revenue Inspector enquired him, D.W. 1 and Karuppanan Servai. Thus these admissions show that he was aware of Exhibit D-14 even when there was an enquiry with regard to the application for transfer of patta. Further in the cross-examination this witness has stated "I know that the suit property passed several hands from Poosari Kandaswami. I looked into the records to know whether the suit properties passed to several hands at the time of filing of the suit in 1943." Thus this admission also clearly shows that plaintiff and Vaduganatha had knowledge of Exhibit D-14 even prior to the filing of this suit. The plaintiff filed an O.P. for redemption of mortgage. In the O.P. the defendant also was impleaded as a party. Thus the fact of impleading the defendant also as party shows that he had knowledge of Exhibit D-14 and about the possession of the suit properties by the defendant by virtue of his right. The plaintiff filed an O.P. for redemption of mortgage. In the O.P. the defendant also was impleaded as a party. Thus the fact of impleading the defendant also as party shows that he had knowledge of Exhibit D-14 and about the possession of the suit properties by the defendant by virtue of his right. Further in paragraph 12 of the plaint he stated: "Thereafter the othi rights in both the items appear to be the subject-matter of partition among the heirs of the said Kandaswami and later to have been acquired by their creditors and at last they came to vest in one Alagarswami Naidu who gave a sub-othi in favour of one Soogai Pillai who was in enjoyment of the properties as sub-othidar." Further in para. 13 of the plaint the plaintiff has stated "the defendant now claims to have acquired the properties from Alagarswami Naidu aforesaid recently. Thus these averments in paragraphs 12 and 13 of the plaint clearly show that the plaintiff had knowledge of Exhibit D-14 even long prior to the filing of the suit and as such his statements in the witness box now that he came to know of Exhibit D-14 only when the defendant filed his written statement should be false. Further a suggestion was made to D.W. 1 that he told the Tirumohoor Devasthanam Officers that he was entitled only by court auction. The plaintiff filed Exhibits P-3 to P-9, and those documents are absolutely useless for the purpose of proving the plaintiff’s contention. Further, the cross-examination of P.Ws.2 and 3 clearly shows that no reliance should be placed on those documents and that it is not safe to rely upon them. 8. With regard to the latter part of the issue whether the plaintiff or his predecessors had knowledge of Exhibit D-14 more than 12 years prior to suit, Exhibits D-25 to D-34, receipts issued by the plaintiff and Vaduganatha Pillai to Balaguru Naidu and the defendant for having received thirwa, were filed. Exhibit D-25 is the receipt issued by the plaintiff to Balaguru Naidu for having received tharam thirwa. Exhibit D-26 is issued by Vaduganatha Pillai to Balagura Naidu for having receivd tharam thirwa. Exhibit D-31 and D-32 are the receipts issued by Vadaganatha an 1 Deivasikamani respectively in the name of Rajammal. Exhibit D-25 is the receipt issued by the plaintiff to Balaguru Naidu for having received tharam thirwa. Exhibit D-26 is issued by Vaduganatha Pillai to Balagura Naidu for having receivd tharam thirwa. Exhibit D-31 and D-32 are the receipts issued by Vadaganatha an 1 Deivasikamani respectively in the name of Rajammal. In the cross-examination P.W.1 has stated, "I will pass receipt only after enquiring into the right for whom a receipt is given. I was passing receipts for two years in the name of Rajammal ". Thus this admission in the cross-examination clearly shows that he had knowledge of Exhibit D-14 as early as in 1923. Exhibit D-31 is dated 1923 and Exhibit D-32 is dated 1925. Thus Exhibit D-31 and Exhibit D-32 and his admission in the cross-examination clearly show that he had knowledge of Exhibit D-14 more than 12 years prior to suit. 9. So my finding with regard to this issue is that the plaintiff and Vadugunatha had knowledge of Exhibit D-14 and that it was more than 12 years prior to suit. This case coming on for hearing after the return of the findings by the trial Court, the Court delivered the following Judgment:-Venkatarama Ayyar, J.-This appeal arises out of a suit for redemption instituted by the respondent. The defendants contested the suit on the ground that it was barred by Article 134 of the Indian Limitation Act. We hold that Exhibit D-14 purported to be a transfer of the property absolutely and that it was not a mere assignment of a mortgage and that therefore it would fall within the scope of Article 134, if the other conditions were satisfied. One of those conditions is whether the plaintiff and his predecessors-in-title had knowledge of the transaction more than 12 years prior to the suit. There was on that point neither an issue nor a finding by the Courts below. We accordingly directed the learned District Munsif to record a finding on that question. Both parties were given liberty, to adduce fresh evidence. The learned District Munsif has now returned a finding that the plaintiff and his predecessors-in-title had knowledge of the transfer more than 12 years before the institution of the suit. Mr. We accordingly directed the learned District Munsif to record a finding on that question. Both parties were given liberty, to adduce fresh evidence. The learned District Munsif has now returned a finding that the plaintiff and his predecessors-in-title had knowledge of the transfer more than 12 years before the institution of the suit. Mr. D. Ramaswami Aiyangar, learned Counsel for the responcent, contends that as the evidence shows that "thirwa" was being paid to the plaintiff, that is consistent only with the transferees remaining in possession as mortgagees, as the thirwa was payable only under the terms of the mortgage. But Exhibit D-14 is a sale deed which purports to convey the property absolutely and this is how it has been construed by all the Court. It is, therefore, impossible to construe the payment of thirwa by the purchasers as a payment in terms of the mortgage bond. The evidence of D.W. I is that the plaintiff had been informed that the property was going to be sold and that has been accepted by the learned District Munsif. The finding of the lower Court is one of fact, and there is evidence in support of it. There are no grounds for interfering with it. We accept the finding, allow the appeal, and dismiss the suit with costs; throughtout. V.P.S. ----- Appeal allowed.