Judgment :- 1. The plaintiff-respondent brought a suit in the Court of the District Munsiff of Nedumangad on 15.3.1119 for redemption of an alleged mortgage. It was stated in the plaint that the Karnavan of Kundarathala Tarwad had mortgaged the property described in the plaint schedule to Ayyappan Pillai Kumara Pillai the Karnavan of the defendant's tarwad, and that the defendants were in possession under the mortgage. The mortgage money was stated to be Fs. 300. The persons who obtained the equity of redemption in the partition of Kundarathala tarwad sold the same to the plaintiff on 27.12.1117, directing him to redeem the mortgage. The cause of action for the suit was stated to have arisen on 21.4.1075, 4.1.1099 the date of the partition in Kundarathala tarwad and 27.12.1117 the date of purchase by the plaintiff. The significance of the date 21.4.1075 was not divulged in the plaint. The 3rd defendant who alone contested the suit denied the alleged mortgage and contended that the property belonged to the defendant's tarwad from ancient times, that she purchased it from the parties who got it in the partition deeds of the years 1090 and 1104 in the defendant's tarwad, that the suit was barred by limitation and that the plaintiff's vendors or their tarwad had no title to the equity of redemption. The plaintiff filed a replication stating that the defendant's tarwad had all along admitted that they had only mortgage right in the property. The property according to the plaintiff belonged Kuruchimatom, who gave it on kanapattom to Kundarathala tarwad. The Jenmi filed a suit as O.S. No. 742 of 1075 for recovery of arrears of Michavarom due under the Kanapattom transaction making the Karnavan and the senior Anandaravan of Kundarathala tarwad, defendants Nos.1 and 2 Ayyappan Kumaran the Karnavan of the defendant's tarwad defendant No. 3. That suit was decreed, charging the amount on the property and thereafter when some members of the defendant's tarwad filed a suit for removal of Ayyappan Kumaran from management, the fact that he was not discharging debts of the tarwad including the one covered by the decree in O.S. No. 742 of 1075 was relied on by them as a ground for his removal. By the institution of the two suits as well as by the payment of tax by the defendants in the name of Kundarathala tarwad, the defendant's tarwad was stated to have admitted that they were in possession only as mortgagees. The plaintiff admitted that he was not aware of the date or the year in which the mortgage was executed. The trial court framed one issue to cover all the points in controversy and it was in these terms. "Is plaintiff competent to redeem". It was held that the defendants were in possession under a mortgage from Kundarathala tarwad and that this finding was sufficient to give the plaintiff a decree for redemption, as the plaintiff had not tied himself down to any specific mortgage made at any particular time. In other words, the finding is that when the plaintiff in a suit for redemption does not allege a specific mortgage and shows that the defendants' possession must be as mortgagees he is entitled to succeed. The decision of the High Court of Travancore in Subramonia Iyer v. Ummini, (9 TLJ 228) was relied on. The 3rd defendant appealed from the decree for redemption to the District Court and the appeal was dismissed on substantially the same ground which found favour with the trial court. It was further held that the defendant had not pleaded limitation but only adverse possession and that no question of limitation arose for decision. As the decree of the trial court was confirmed in appeal, the 3rd defendant has brought this second appeal. 2. It is obvious that the learned judge did not care to look into the pleadings; had he done so, he could not have missed the fact that the plea of limitation was raised in paragraphs Nos. 4 and 7 of the 3rd defendant's written statement and that there was no contention based on adverse possession. The learned judge observed: "No doubt the date of the mortgage is not known. But when the plaintiff has succeeded in showing that the defendant is holding the property under a mortgage and only in that capacity, a case for redemption has been made out by him and it is for the defendant to make out that he is not holding under that particular mortgage". 3. But when the plaintiff has succeeded in showing that the defendant is holding the property under a mortgage and only in that capacity, a case for redemption has been made out by him and it is for the defendant to make out that he is not holding under that particular mortgage". 3. It is not clear how the defendant could show that she was not holding under a "particular mortgage" when the plaintiff himself had no case that the defendant was in possession under a "particular mortgage". As there are some reported decisions which might appear to support the proposition adopted by the courts below, it is necessary to examine the question in some detail. The earliest decision of the High Court of Travancore on this point is the one referred to above, viz., Subramonia Iyer v. Ummini (9 TLJ 288). That was a suit filed in the year 1089 for redemption of a mortgage dated 15.5.1041. The plaintiff failed to prove this mortgage and it was held: "In the present case, the plaintiff has come into court setting out in his plaint that the mortgage sought to be redeemed was a mortgage of 15th Dhanu 1041 and the plaint gives all details connected with the alleged mortgage. It is clear law that where the plaintiff alleges that he is entitled to possession by reason of the determination of a mortgage it lies on him to prove the mortgage which he asserts. It is for him to show that he had at the commencement of the suit a subsisting title to the possession of the property; and he must mention in his plaint facts to show that such title exists". 4. This principle, if I may say so with respect, is quite unexceptionable. In dealing with an argument advanced on behalf of the appellant it was observed: "In such cases where the plaintiff does not tie himself down to any specific mortgage made in a particular year and the defendant in possession denies the mortgage, the real question is whether the defendant is mortgagee of the property in suit and in such circumstances the plaintiff is entitled to succeed if he proves that the land is held by the defendant as mortgagee". 5. 5. This observation which was based on the decisions in Ganeshi Lal v. Basanti Lal (20 IC 29), Ram Lal v. Shri Mukurji Koshori Mahraj (22 IC 574) and Bala v. Shiva (ILR 27 Bom. 271) was followed by the Travancore High Court in Aiyappan v. Subramonian (4 TLT 48) Raman Raman v. Varki Skaria (4 TLT 780) and Punnan Masilamony v. Easakkimadan Velayudhan (5 TLT 875). Reference will be made to these decisions later. 6. The authority for the proposition on which the courts below placed reliance and which was urged before me by the learned counsel for the respondent is stated to be the decision of the Privy Council in Dutt Pandey v. Narendar Bahadur (LR 3 IA 85). This case came up for consideration before a Full Bench of the High Court of Allahabad in Paramanand Misr v. Sahib Ali (ILR 11 All. 438) and I cannot better illustrate the scope and effect of the decision of the Privy Council than by quoting from the judgment of Sir John Edge, C.J.: "It appears to me that their Lordships of the Privy Council in the case of Raja Krishna Dutt Pandey v. Narendar Bahadur Singh (LR 3 IA 85) although they were then considering Act I of 1896, enunciated, if I may say so, the correct rule of law as to the onus of proof in suits for redemption of mortgage applicable to cases like the present. In that case which was one for redemption of mortgage, the then officiating Judicial Commissioner of Oudh had held that there was a presumption of law in favour of the plaintiff, and that the burden of proof lay, not upon the plaintiff to prove that the term did not expire before the 13th February 1856, which was the material date so far as limitation in that case was concerned, but upon the defendant to prove that it did. Their Lordships at pp. 88 and 89 of the report are reported to have said "Their Lordships are not prepared to concur with the Judicial Commissioner in the view that he expressed that the presumption of law is such as he described it. It appears to their Lordships that in such a case as the present it lies upon the plaintiff to substantiate his case by some evidence by some prima facie evidence at least. It appears to their Lordships that in such a case as the present it lies upon the plaintiff to substantiate his case by some evidence by some prima facie evidence at least. But in this as in most cases, where the quantum of evidence required from either party is to be considered, regard must be had to the opportunities which each party may naturally be supposed to have of giving evidence, and although the burden of proof prima facie in this case in their Lordship's view is upon the plaintiffs, still they think the consideration should not be omitted that the defendant would naturally have the mortgage, and that it would be prima facie at all events, more in his power to give accurate evidence of its contents than in that of the plaintiff", and further "Now applying this view of the law to the present case, their Lordships have to see whether the plaintiff, in this view, did give such prima facie evidence as shifted the burden of proof on the defendants. Although it may be that the evidence of neither side is altogether satisfactory, nevertheless their Lordships after giving their best consideration to the case, are of opinion that the plaintiff did give some such prima facie evidence. He was himself examined. He called seven or eight witnesses who deposed to the contents of the instrument, to its containing the term which he contended for, and further, to the admission of the defendant or of his predecessors of the existence of some such term, and the Extra Assistant Commissioner believed the witnesses, having, as was before observed, the opportunity of seeing and observing their demeanour". It is quite plain to my mind that their Lordships held in that case that the onus of proving that the suit for redemption of mortgage was brought within time lay upon the plaintiff. They held that prima facie evidence to that effect amounted to proof sufficient to shift the burden upon the defendant of proving the contrary. It is quite plain to my mind that their Lordships held in that case that the onus of proving that the suit for redemption of mortgage was brought within time lay upon the plaintiff. They held that prima facie evidence to that effect amounted to proof sufficient to shift the burden upon the defendant of proving the contrary. It cannot be suggested that their Lordships in using the words "It lies upon the plaintiff to substantiate his case by some evidence, by some prima facie evidence at least" meant to suggest that evidence which is not believed or considered reliable by a judge who has to find the facts would be sufficient to substantiate a plaintiff's case so as to shift the burden of proof from his shoulders to those of a defendant. In that case there was in addition to the evidence of the plaintiff the evidence of seven or eight witnesses "who deposed to the contents of the instrument to its containing the term which he (the plaintiff) contended for, and further, to the admission of the defendant or of his predecessors of the existence of some such term". One piece of evidence in that case was that the defendant in certain settlement proceedings in 1857 corrected a statement that he was the purchaser of the property and described himself as a mortgagee, a statement which was prima facie inconsistent with the term of the mortgage having expired before the 13th February 1856. Their Lordships in conclusion and after they had discussed at some length the evidence such as it was, on the record say, "Their Lordships therefore think that the evidence of the plaintiff is to some extent corroborated by an admission of the defendant, to the effect that there was in existence a mortgage in 1857. They therefore think that the plaintiff gave some evidence calling upon the defendant for an answer. It may be that the evidence was not very strong and that it would have been rebutted by evidence any force on the other side. But their Lordships are of opinion that the evidence of the defendant, the main portions of which appear to have been disbelieved by all three Courts, some documents connected with which have been treated by all three Courts as spurious, contains no answer to the case of the plaintiff, which must therefore prevail". 7. But their Lordships are of opinion that the evidence of the defendant, the main portions of which appear to have been disbelieved by all three Courts, some documents connected with which have been treated by all three Courts as spurious, contains no answer to the case of the plaintiff, which must therefore prevail". 7. It was further held by the learned Chief Justice that the plaintiff in such a suit as the present one must show in his plaint his title and that involved his showing a title subsisting at the date of suit. Unless the plaintiff shows that prima facie he had at the commencement of the suit a title and a right to sue them subsisting he cannot succeed. As observed by Sir John Edge: "Unless the plaintiff in a redemption suit gives prima facie evidence to show that this suit is brought within the time allowed by the Indian Limitation Act, he, in my opinion, fails to show that he has a subsisting right to the property in suit or, in other words, he fails to prove his title". 8. Thus if the plaintiff in a suit for redemption is unable to give the date of the mortgage he must give prima facie evidence that the mortgage was subsisting on the date of suit or admitted to have been subsisting within the period of limitation. 9. A careful examination of the cases which appear to lay down the principle on which the courts below rest their decision will show that decrees for redemption were passed only in cases in which the plaintiffs proved a subsisting title on the date of the suit. In Balaji Narji v. Babu Deoli (5 Bom. HCR, ACI), the Bombay High Court held that in a redemption suit, the admission by the defendant that the plaintiff's ancestor had proprietory possession of the land in the suit and the failure of the defendant to prove his plea that he held by purchase did not relieve the plaintiff of the onus of giving prima facie evidence that the mortgage alleged by him had been made. In Ganeshi Lal v. Basanti Lal (20 IC 29) the plaintiffs sued for redemption of a mortgage made somewhere about 1853. It was found that the defendants' predecessor had acknowledged the mortgage as a subsisting one in 1856 and 1865. In Ganeshi Lal v. Basanti Lal (20 IC 29) the plaintiffs sued for redemption of a mortgage made somewhere about 1853. It was found that the defendants' predecessor had acknowledged the mortgage as a subsisting one in 1856 and 1865. It was held that this amounted to prima facie evidence that the mortgage was subsisting on the date of suit. Ram Lal v. Shri Mukurji Koshori Rawan Mahraj (22 IC 574) is another decision of the Allahabad High Court in a suit for redemption of a mortgage made on 27th July 1858. It was held that where the plaintiff alleged that he was entitled to possession by reason of the determination of a mortgage, it was for him to prove that he had at the commencement of the suit a subsisting title to possession of the property. In Bala v. Shiva (27 Bom. 271) the plaintiff sued for redemption of a mortgage alleged to have been made about 45 years before the date of suit. It was held that the plaintiff who did not tie himself down to any specific mortgage would be entitled to succeed if he proved that the lands were still held by the defendants as mortgagees. On the evidence it was found that the defendants had admitted within the period of limitation that the mortgage was a subsisting one. In all the reported decisions of the Travancore High Court referred to earlier, even though the proposition may not have been stated with precision, decrees for redemption were passed on the finding that the persons in possession had acknowledged the subsistence of a mortgage at some point of time which if taken as the starting point of limitation would save the suit from the bar of limitation. 10. Coming to the facts of this case, the plaintiff does not tie himself down to a specific mortgage made on any particular day. The evidence adduced by the plaintiff does not show that the defendants or their predecessors admitted a subsisting mortgage in respect of the suit property at any time. Ext. C copy of the classification register shows that the property was held on kanapattom by Kundarathala tarwad and that Mathevi Mathevi of the defendant's tarwad was in possession. It is not clear how Mathevi Mathevi could have been in possession if Ayyappan Kumaran was the Karnavan at that time. Ext. Ext. C copy of the classification register shows that the property was held on kanapattom by Kundarathala tarwad and that Mathevi Mathevi of the defendant's tarwad was in possession. It is not clear how Mathevi Mathevi could have been in possession if Ayyappan Kumaran was the Karnavan at that time. Ext. C does not contain any admission by the defendant's tarwad that there was a subsisting mortgage at that time. Ext. D is copy of the decree dated 27.5.1075 in O.S. 742 of 1075, a suit filed by the Jenmi for recovery of arrears of Michavaram etc., under the Kanapattom demise to Kundarathala tarwad. The 3rd defendant in that suit was Ayyappan Kumaran of the defendant's tarwad and Defendants Nos.1 and 2 were the Karnavan and the senior Anandaravan of Kundarathala tarwad. As the Jenmi claimed a charge on the property which was in the possession of the defendants' tarwad at that time, Ayyappan Kumaran was properly impleaded. He did not contest the suit. Ext. E is copy of the written statement of the 2nd defendant in that suit. It is stated in Ext. E that the property had been mortgaged to the defendants' tarwad and that the mortgagee was liable to pay the dues. There is no admission by Ayyappan Kumaran in O.S. No. 742 of 1075, that the mortgage was subsisting at that time. In the year 1079 some junior members of the defendants' tarwad instituted a suit, O.S. No. 4 of 1079 to remove Ayyappan Kumaran from management of the tarwad. One of the charges against him was that he failed to discharge debts of the tarwad. The debt covered by the decree in O.S. No. 742 of 1075 was specifically referred to as an instance of such dereliction of duty on his part. Ext. G is copy of the judgment in that case. It was urged on the strength of Ext. G that the tarwad admitted the subsistence of a mortgage on that date. Ext. G does not in my opinion contain any such admission. Except for the fact that they referred to a debt charged on a property in the possession of their tarwad, there is nothing to indicate that they acknowledged the mortgage as a subsisting one on that date. Ext. G does not in my opinion contain any such admission. Except for the fact that they referred to a debt charged on a property in the possession of their tarwad, there is nothing to indicate that they acknowledged the mortgage as a subsisting one on that date. The liability for the debt arose not because the mortgage was subsisting on that date but on account of the fact that the property was of Kanapattom tenure. Exts. H and J which are copies of the thandaper accounts and the settlement register respectively, only show that the property was entered in revenue records as the kanapattom holding of Kundarathal tarwad and that it was in the possession of the defendants' tarwad. The plaintiff has no case that the defendants' tarwad admitted the mortgage transaction in settlement proceedings. The plaintiff admitted that he was unable to give the date of the mortgage. If the mortgage was one which came into existence before the year 1042 when the Travancore Registration Act was enacted, it would not be possible to get an authenticated copy of the deed. But in such a case redemption would be clearly barred. If there was a mortgage after the year 1042 it is not clear why the plaintiff could not trace the same. The plaintiff has not succeeded in proving that the defendants acknowledged the mortgage as a subsisting one at any time within 50 years preceding the commencement of the suit. This therefore, is a case in which the plaintiff has not proved his title to redeem. The decrees of the courts below are based on a wrong view of law and have to be set aside. 11. In the result, in reversal of the concurrent decrees allowing redemption, the second appeal is allowed and the plaintiff's suit is dismissed. In the nature of the case, the parties are directed to bear their costs throughout. Learned Counsel for the appellant asks for leave to appeal. Leave is granted.