Madhava Warrier v. Raman Nair — 1965 DIGILAW 152 (KER)

Judgment :- 1. This arises out of a suit instituted by the original plaintiff, Rama Warrier now deceased, to redeem a usufructuary mortgage Ext. A-28, executed by his family in the year 1916. That mortgage contained a stipulation, that if it was not redeemed before a specified date in the year 1917, the mortgagee might treat it as an assignment of the kanam, which was the right mortgaged. Under a deed of the year 1919, which is not in evidence and by which the family of the mortgagee was partitioned, the right under or pursuant to Ext. A-28 was allotted to the share of Sankunni Nair, a member of the family, who was the father of defendants 20 & 21. Sankunni Nair purported to assign the kanam right and not merely the mortgage, to his wife and children by Ext. B-5 in the year 1922 and the latter in their turn assigned the same to the 22nd defendant by Ext. B-6 in the year 1923. The 22nd defendant took renewals of the kanam from the jenmi in the year 1929, and in the year 1941 by Ext. B-8. The suit that has led to this appeal was instituted by the deceased plaintiff as the karnavan of his family, on the 27th February, 1952. It was contested by the 22nd defendant and others, one of the pleas being; that it was barred by limitation. The stipulation in Ext. A-28 enabling the mortgagee to treat it as an assignment if redemption did not take place as specified, was; held by the Munsiff to be invalid, but was accepted as valid by the Subordinates Judge in appeal. This second appeal was preferred by the legal representative off the plaintiff and after he also died, has been continued by the additional appellant, who may be referred to as the appellant. The 22nd defendant who died during the trial of the suit is represented by the respondents. 2. The contention of the respondents based on the stipulation in Ext. A-28, which found favour with the judge, cannot prevail. That stipulation amounted to a clog on redemption and is invalid. Learned counsel for the respondents did not support the judge's finding. The only other question which arises in this second appeal is whether the suit is barred under Art.134 of the Limitation Act. The assignments Exts. A-28, which found favour with the judge, cannot prevail. That stipulation amounted to a clog on redemption and is invalid. Learned counsel for the respondents did not support the judge's finding. The only other question which arises in this second appeal is whether the suit is barred under Art.134 of the Limitation Act. The assignments Exts. B-5 and B-6 purported to be of the kanam right in the property and not of the mortgage right under Ext. A-28. The mortgagee having; parted with the kanam right in the property to the 22nd defendant, Art.134 can very well be attracted, if the other conditions in the Article are satisfied. The: relevant part of that Article as amended, is "to recover possession of immovable property... mortgaged and afterwards transferred by the... mortgagee for a valuable consideration", the period of limitation being 12 years from the date on which "the transfer becomes known to the plaintiff". It was alleged in the plaint, that the plaintiff knew about the "panayam assignment" in favour of defendants 20 to 22 in the year 1950; this allegation was traversed by the 22nd defendant in the written statement. The plaintiff adduced no formal evidence even, in support of the allegation. Some evidence was adduced by the respondents to prove that Rama Warrier, a previous karnavan of the family of the plaintiff and one of the executants of Ext. A-28, was himself present at the time of taking the renewal from the jenmi, but it was found to be not dependable by the judge. 3. Learned counsel for the respondents then contended, that it was for the plaintiff to prove, when the transfer became known to him and that the initial burden lay on him and not on the respondents; if prima facie proof was adduced the burden may, according to the circumstances, shift. For this proposition, reliance was placed on the summary of the law as set forth in Sanjiva Row's Limitation Act, 1958 edition, Vol. II, page 1108 and in Rustomji's Law of Limitation 6th edition, page 724, based on Raghunandan Misra v. Mahadeo AIR. 1933 Oudh. 38 & Khadi Khan v. Murad Khan AIR. 1942 Peshawar 39. For this proposition, reliance was placed on the summary of the law as set forth in Sanjiva Row's Limitation Act, 1958 edition, Vol. II, page 1108 and in Rustomji's Law of Limitation 6th edition, page 724, based on Raghunandan Misra v. Mahadeo AIR. 1933 Oudh. 38 & Khadi Khan v. Murad Khan AIR. 1942 Peshawar 39. When a fact is peculiarly within the knowledge of a party, the burden must be cast on him to prove it and that apart, generally speaking, it is for the plaintiff to prove that his suit is prima facie within time. But learned counsel for the appellant pressed into service the decision of Abdur Rahman, J., in Krishnaswami Aiyar v. Sabarathnam Chetti (1938) 1 MLJ.101 at p. 104, where, comparing Art.148 with Art.134 as it was before the amendment, when the starting point was simply the date of the transfer, the judge observed: "There is no doubt that since Art.134 contains a stringent provision of law, the onus of proving facts which would attract the provisions of this article in preference to Art.148.... would lie heavily on the party who wishes to claim the benefit of an abridged period of limitation." Speaking with respect, this reasoning however sound, cannot apply to the Article as amended, in which the date of knowledge of the plaintiff is the starting point. A mortgagor could not generally be held to have all knowledge about the dealings by the mortgagee and may therefore be saved from the rigour of Art.134 before its amendment by placing the burden on the latter; but where the time at which he knew about the transfer is the starting point, the burden must be borne by him. Katha Nadar v. Chinnathayammal AIR. 1955 Notes of Unreported Cases (Madras) 3939 which was relied on, simply followed this case. I am of the view that after the amendment, the burden is on the plaintiff to prove the date of his knowledge of the transfer. Such proof is wanting in this case. 4. Learned counsel then contended, that if the respondents had notice of Ext. A-28, Art.134 would have no application. This aspect was examined by a full bench of the Allahabad High Court in Mt. Chunai v. Ram Prasad AIR. Such proof is wanting in this case. 4. Learned counsel then contended, that if the respondents had notice of Ext. A-28, Art.134 would have no application. This aspect was examined by a full bench of the Allahabad High Court in Mt. Chunai v. Ram Prasad AIR. 1951 Allahabad 167 which held, that it is for the mortgagor who relies on Art.148 to establish, that the transferee from the mortgagee had notice of the mortgage and not for the transferee to prove that he had no notice. With respect, I am also of the same view. These are sufficient for dismissing this appeal. 5. Learned counsel, however, pressed that the case may be remanded to the first court for enabling the appellant to adduce evidence as to the date of knowledge of the plaintiff of the assignment. It is now too late in the day to make the prayer in this court. The absence of an issue on that point was not made the subject of complaint in the appeal memorandum, either in the lower court or in this court. The prayer cannot be entertained. 6. In the result, though on different grounds, the second appeal is dismissed, but without costs, as the Subordinate Judge has proceeded upon a ground which is erroneous. I do not find any good ground to allow CMP. 7561 of 1963, which is also dismissed. Dismissed.