Judgment :- 1. The fourth defendant in O.S. No. 432 of 1966 is the appellant in S.A. No. 1526 of 1978. The fourth plaintiff in O.S. No. 48 of 1969, who is the fourth defendant in O.S. No. 432 of 1966, is the appellant in S.A. No. 1704 of 1978. 2. O.S. No. 432 of 1966 is for declaration of title and for injunction restraining defendants 1 to 4 from interfering with the plaintiffs possession. The short facts of the case are as follows:— Defendants 1 to 4 in O.S. No. 432 of 1966 are the members of Janmi Tarward. Their ancestors executed a usufructuary mortgage in or about 1000 M.E. in favour of one Ponnumperumal. That devolved upon his son Thanuvan. In the partition between the heirs of Thanuvan, 1/6th share fell to one of the sons of Thanuvan, v iz., Ananchan. The said Ananchan is the father of the plaintiff in O.S. No. 432 of 1966. The said Ananchan, by Ex. A1, dated 25-1-1074 M.E. created a submortgage in favour of his wife Valli Esakki. On 29-9-1074 M.E. Ananchan took a fresh mortgage from Janmi Tarward under Ex. B2. On 19-8-1089 M.E. he renewed Ex. B2 under Ex. B3. On 9-9-1103 M.E. under Ex. B5, Ananchan and his brothers released their respective rights in the mortgage created originally in or about 1000 M.E. in favour of Kali Amma. After so releasing under Ex. B5, Ananchan took fresh mortgage from Kali Amma on the same day i.e., 9-9-1103 M.E. in respect of 2.25 acres under Ex. B6. The fourth defendant in O.S. No. 432 of 1966 claims right only through Kali Amma. He has filed O.S. No. 48 of 1969 in order to redeem the mortgage created under Ex. B6. Under Exs. B7, B8 and B9, dated 4-8-1109 M.E. 9-12-1119 M.E. and 20-9-1123 M.E. respectively, Ananchan has dealt with this suit property creating. Othi and Kuzhi-kanan in favour of Narayana Nadar, Narayana Nadar in favour of A. Kochummini Nadar and A. Kochummini Nadar in favour of P. Mariyamuthu Nadathy respectively. Ananchan has dealt with this property under Ex. B13, dated 5th March, 1951, which is the copy of sale deed executed by him in favour of S. Dasamma. Ex. Othi and Kuzhi-kanan in favour of Narayana Nadar, Narayana Nadar in favour of A. Kochummini Nadar and A. Kochummini Nadar in favour of P. Mariyamuthu Nadathy respectively. Ananchan has dealt with this property under Ex. B13, dated 5th March, 1951, which is the copy of sale deed executed by him in favour of S. Dasamma. Ex. B15 is another document evidencing the right of Ananchan in the said suit property, which originally stood in the name of his mother Valli Esakki and devolved on him subsequent to her death. According to the plaintiff in O.S. No. 432 of 1965, the right that devolved upon him has become absolute by virtue of the Law of Limitation and as such, the fourth defendant has lost his right of redemption also. It is his further case that in as much as he was taken away from the array of parties in O.S. No. 220 of 1963 while disposing of A.S. No. 123 of 1965, which was filed against O.S. No. 220 of 1963, the present suit O.S. No. 48 of 1969 is hit by O. 2, R. 2, C.P.C. 3. The trial Court, after observing that Ex. A1 was not acted upon, that Ananchan was throughout in possession and enjoyment of the property, that Exs. B3, B4 and B8 to B10 amply establish that Ananchan was in possession and enjoyment of the property, that the conduct of the plaintiff in O.S. No. 432 of 1966 in filing the written statement in the previous suit and also redeeming Ex. B4 mortgage will clearly estop the plaintiff from claiming any right under Ex. A1 and that the decree in O.S. No. 220 of 1963 will not in any way disentitle the appellant herein from filing the suit for redemption, dismissed O.S. No. 432 of 1966 and decreed O.S. No. 48 of 1969. It is as against this judgment and decree, the plaintiff in O.S. No. 432 of 1966, who is also the first defendant in O.S. No. 48 of 1969, has preferred A.S. Nos. 62 and 64 of 1977 respectively. 4. The lower appellate court, taking into consideration Exs. B3 to B9 marked in O.S. No. 220 of 1963 and also the tax receipts Exs. 62 and 64 of 1977 respectively. 4. The lower appellate court, taking into consideration Exs. B3 to B9 marked in O.S. No. 220 of 1963 and also the tax receipts Exs. A2 to A6 for the years between 1953 and 1966, came to the conclusion that the plaintiff in O.S. No. 432 of 1966 was holding the property under the mortgage executed by Ananchan in favour of Valli Esakki, who is the mother of the plaintiff. Referring to the decree in Ex. A7, wherein the plaintiff in O.S. No. 432 of 1966 has been taken out from the array of parties in the suit for redemption filed by the appellant herein, the lower appellate court held that the appellant court herein is not entitled to seek the very same relief by filing O.S. No. 48 of 1969. The lower appellate court has also held that the plaintiff in O.S. No. 432 of 1966 has perfected his title under the sub mortgage executed by Ananchan in favour of Valli Esakki. With these observations, the lower appellate Court set aside the decrees passed in O.S. Nos. 432 of 1966 and 48 of 1969 and decreed the suit O.S. No. 432 of 1966 and dismissed the redemption suit O.S. No. 48 of 1969 with costs. It is as against these judgments and decrees, the above two Second Appeals have been filed by the fourth defendant in O.S. No. 432 of 1966 and the fourth plaintiff in O.S. No. 48 of 1969. 5. Miss O.K. Sridevi, learned counsel appearing for the appellant in both the appeals, contended that Ex. A1 was not acted upon, that Ananchan was dealing with the suit property even subsequent to Ex. Al, that the documents on record will clearly establish such dealings by Ananchan, that in view of Exs. B2, B3, B5, B6, etc., the right to redeem the mortgage is not barred by limitation, that as per S. 30 of the Limitation Act, the appellant has come well within time to file the suit for redemption, that in view of the written statement Ex. B12 filed by the plaintiff in O.S. No. 432 of 1966, he is estopped from contending that the redemption suit is barred by limitation, that even assuming that Ex. B12 filed by the plaintiff in O.S. No. 432 of 1966, he is estopped from contending that the redemption suit is barred by limitation, that even assuming that Ex. A1 has taken effect, Valli Esakki, as a sub-mortgagee, cannot prescribe against Janmi Tarward, who is entitled to redeem all the mortgages from all those claiming under the sub-mortgagee, that the right of the sub-mortgagee, if any, is only for getting the money she has advanced, that the appellant has right to file any number of redemption suits and that, on the facts and circumstances of the present case O.S. No. 48 of 1969 is not barred undsr O. 2, R. 2, C.P.C. 6. Mr. K. Ramaswami, learned counsel appearing for the respondent/plaintiff in O.S. No. 432 of 1966, strenuously contended that O.S. No. 48 of 1969 is barred under O. 2, R. 2, C.P.C., that Ex. A1 was acted upon, that the dealing subsequent to Ex. A1 by Ananchan is only to deprive the right of Valli, Esakki, that those transactions are sham and nominal one, that as per S. 30 of the Limitation Act, the suit for redemption is barred by limitation and that the plaintiff in O.S. No. 432 of 1966 in entitled to declaration and injunction as prayed for by him since he has perfected his title by prescription. 7. The main question that I have to decide in these appeals is, whether the right of the appellant to redeem is barred under the law of limitation and whether such a right is hit by O. 2, R. 2, of the Code of Civil Procedure by virtue of the decree in A.S. No. 123 of 1965 on the file of the Subordinate Judge, Nagercoil, which is marked as Ex. A-7 wherein the first respondent herein, who was arrayed as first defendant in O.S. No. 220 of 1963, was directed to be removed from the array of parties. O.S. No. 220 of 1963 was filed by the appellant herein along with others for redemption of the othi deed dated 9-9-1103 M.E. which is marked as Ex. B6 in this case. A preliminary decree was passed on 18th December, 1964 for redemption of the othi deed dated 9-9-1103 M.E. The first respondent herein took it by way of appeal and in that appeal A.S. No. 123 of 1965, the first respondent herein was removed from the array of parties. B6 in this case. A preliminary decree was passed on 18th December, 1964 for redemption of the othi deed dated 9-9-1103 M.E. The first respondent herein took it by way of appeal and in that appeal A.S. No. 123 of 1965, the first respondent herein was removed from the array of parties. Ex. A7 is the copy of the decree in A.S. No. 123 of 1965. This removal, according to Mr. K. Ramaswami, learned counsel for the first respondent, extinguishes the right of the appellant from enforcing his right of redemption against the first respondent herein. For this purpose, he invokes O. 2. R. 2, C.P.C. O. 2, R. 2 C.P.C. reads as follows:— “Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of the claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.” Section 60 of the Transfer of Property Act deals with the right of the mortgagor to redeem. It reads as follows:— “At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee; (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor; (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished; Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court.” It is clear from S. 60 of the Transfer of Property Act that the right to redeem will enure to the party concerned until such right conferred by the section is extinguished by the act of parties or by a decree of Court. In this connection, we can usefully refer to Certain decisions cited by the counsel for the respective parties. 8. In this connection, we can usefully refer to Certain decisions cited by the counsel for the respective parties. 8. In Thota China Subba Rao v. Mattapalli Raju 1, it is observed as follows:— “The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage itself subsists. The right of redemption can be extinguished as provided in S. 60 and when it is alleged to have been extinguished by a decree, the decree should run strictly in accordance with the form prescribed for the purpose. Unless the equity of redemption is so extinguished, a second suit for redemption by the mortgagor, if filed within the period of limitation, is not therefore barred. If the mortgagee fails to establish that the old decree extinguished the right to redeem, there is no ground for saying that the old decree operates as res judicata and the Courts are prevented from trying the second suit under S. 11, C.P.C.” In Yasin Dadu Patil v. Kasim Babalal Patil 2, the Chief Justice of Bombay High Court had occasion to consider as to whether a decree passed under O. 34, R. 8, C.P.C., will operate as res judicata for a subsequent suit for redemption. On the facts and circumstances of that case, the learned Chief Justice held that there is no order or decree passed by the Court debarring the mortgagor from his right to redeem the mortgage property and as such, the right to redeem is not extinguished. In Madhava Shenoi Narayana Shenoi v. Yesodabai 3, a Full Bench of the Kerala High Court, following the reasoning given in Ammenumma v. Chelampiriyarath 4, held that a second suit for redemption is maintainable. 9. In the light of the abovesaid decisions, I find that the present suit is not hit either by O. 2, R. 2, C.P.C., or by S. 11, C.P.C. First of all, the decree rendered in O.S. No. 220 of 1963 is only a preliminary decree. Secondly, the first respondent, by a decree of the appellate court in A.S. No. 323 of 1965 on the file of the Subordinate Judge, Nagercoil, was ordered to be removed from the array of parties. This will not in any way extinguish the right of redemption that has accrued in favour of the appellant herein. Secondly, the first respondent, by a decree of the appellate court in A.S. No. 323 of 1965 on the file of the Subordinate Judge, Nagercoil, was ordered to be removed from the array of parties. This will not in any way extinguish the right of redemption that has accrued in favour of the appellant herein. For all these reasons, I am of the view, that the argument of the learned counsel for the first respondent as if the suit for redemption is hit by O. 2, R. 2, C.P.C., cannot be sustained. 10. The mortgage under Ex. B6 was the subject matter of the redemption suit filed by the appellant and others in O.S. No. 220 of 1963. The first respondent herein claims the suit property in O.S. No. 48 of 1969 as if he has inherited the same from Valli Isakki. His father is one Ananchan. He was the mortgagee under the predecessors-in-interest of the appellant herein, which dates back to 1000 M.E. The said Ananchan under Ex. A1 dated 25-1-1074 M.E. sub-mortgaged the property to Valli Esakki, his wife. The first respondent herein alleged that his mother and himself are in uninterrupted possession of the suit property for over the statutory period and as such, he is entitled to a decree for declaration and injunction and filed O.S. No. 432 of 1966. 11. Miss. O.K. Sridevi, learned counsel for the appellant, contended that Ex. A1 was never acted upon, that Ananchan was dealing with the property by creating mortgages subsequent to Ex. A1 in his own right and that the first respondent himself in the written statement filed in O.S. No. 396 of 1124, which is marked as Ex. B12, accepted that he redeemed the mortgage Ex. B4 created by Ananchan. Ananchan took fresh mortgage from the original Tarwards, who are the ancestors of the appellant herein, under Ex. B2 dated 29-9-1074 M.E. Ex. B2 was renewed by Ananchan under Ex. B3 dated 19-8-1089 M.E. Under Ex. B-5 the said Ananchan and his brothers released their right in the mortgage property in favour of Kali Amma. After such release, Ananchan took fresh mortgage from Kali Amma under Ex. B6 dated 9-9-1103 M.E. This mortgage created under Ex. B6 is sought to be redeemed by the appellant and others. Thus, the documents referred to above clearly indicate that Ananchan was dealing with the property in spite of Ex. After such release, Ananchan took fresh mortgage from Kali Amma under Ex. B6 dated 9-9-1103 M.E. This mortgage created under Ex. B6 is sought to be redeemed by the appellant and others. Thus, the documents referred to above clearly indicate that Ananchan was dealing with the property in spite of Ex. A-1 created as early as 25-1-1074 M.E. Further, under Ex. B4 Ananchan executed a sub-mortgage in favour of one Esakki Nadar on 21-12-1098 M.E. This sub-mortgage was redeemed by Perumal Nadar, the first respondent herein, under Ex. B10 dated 6-4-1122 M.E. This is clear from the written statement Ex. B12 filed by the first respondent herein in O.S. No. 396 of 1122 M.E. filed by the said Ananchan against Esakki Nadar for redemption. In Ex. B12 written statement the first respondent herein has stated that he has redeemeed the mortgage Ex. B4 as a de facto manager since his father Ananchan was not managing the family properties properly. There is nothing in Ex. B12 claiming that the property in question belongs to his mother. Thus, Ex. B12 belies the contention of the first respondent herein and establishes that the property in question was always enjoyed by Ananchan and that Ex. A1 was not acted upon. This is also clear from the fact that Ananchan created another sub-mortgage in favour of one Narayanan Nadar under Ex. B7 dated 4-8-1109 M.E. This Ex. B7 was got assigned in favour of one Kochummini Nadar under Ex. B8. This Kochummini Nadar is the fifth defendant in the suit filed by the first respondent herein in O.S. No. 432 of 1966. The said Kochummini Nadar assigned Ex. B1 mortgage in favour of the wife of the first respondent herein under Ex. B9 dated 20-9-1123 M.E. Ananchan himself executed another sub-mortgage to one Dasamma on 5th March, 1951 under Ex. B13 and this mortgage right was assigned in favour of defendants 8 and 9 in O.S. No. 432 of 1966 under Ex. B15, dated 2-12-1961. Defendants 8 and 9 in O.S. No. 432 of 1966 are no other than the daughters-in-law of the first respondent herein. Thus, it is clear that Ex. A1 could not have taken effect at all and it is not correct on the part of the first respondent herein to contend that by virtue of Ex. A1, the property in question has vested in him absolutely under the law of limitation. Thus, it is clear that Ex. A1 could not have taken effect at all and it is not correct on the part of the first respondent herein to contend that by virtue of Ex. A1, the property in question has vested in him absolutely under the law of limitation. Further Ananchan being the mortgagee under the Tar ward, owned property, took a fresh mortgage on 29-9-1074 M.E. and the same was renewed under Ex. B3 dated 19-8-1089 M.E. S. 30 of the Limitation Act reads as follows:— ‘Notwithstanding anything contained in this Act,— (a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act. 1908, may be instituted within a period of seven years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1968, whichever period expires earlier: Provided that if in respect of any such suit, the said period of seven years expires earlier than the period of limitation prescribed therefor under the Indian Limitation Act, 1908 and the said period of seven years together with so much of the period of limitation in respect of such suit under the Indian Limitation Act, 1908, as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under this Act, then, the suit may be instituted within the period of limitation prescribed therefor under this Act. (b) any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act, 1968, whichever period expires earlier.” In this connection, I can usefully refer to the decision in N. Chellappan Pillai v.. Anthoni 1, wherein it is stated as follows:— “The normal rule is that the law of limitation applicable to the suit is the law in force at the date of the institution of the suit. See Syed Yousuf v. Syed Mohammed 2. Anthoni 1, wherein it is stated as follows:— “The normal rule is that the law of limitation applicable to the suit is the law in force at the date of the institution of the suit. See Syed Yousuf v. Syed Mohammed 2. There is equally a well known principle that retrospective operation ought not to be given to a statute so as to take away vested rights, unless that effect cannot be avoided without doing violence to the language of the enactment, and that, except in special cases, the new law ought to be construed so as to interfere as little as possible with vested rights. See Rajah of Pittapur v. Venkatasubba Rao 1. Thus, even in the absence of S. 6 Central Act 3 of 1961, that Act (sic) cannot be taken as affecting the vested rights available under the Travancore Limitation Regulation. In effect, the period of limitation had to be counted from the date of the Purakadom. The position is afortiorari because of S. 6, which preserves the continuance of the vested rights acquired under the repealed statute. The Indian Limitation Act was substituted by the Limitation Act, 1963. Under he New Limitation Act, the period of redemption of a mortgage was reduced to 30 years. A special provision was, however, made in S. 30 of the 1963 Act, reading as follows:— ‘Notwithstanding anything contained in this Act (a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of seven years after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier. ..’ The period of seven years was substituted for five years by the Limitation (Amendment) Act, 1969 (10 of 1969) and the provision is deemed to have been so enacted from the commencement. Thus the plaintiffs had a period of seven years from 1st April, 1964, when the Indian Limitation Act of 1963 came into force. The period of seven years would thus expire on 31st March, 1971, and the suit was filed on 2nd January, 1971. Thus the plaintiffs had a period of seven years from 1st April, 1964, when the Indian Limitation Act of 1963 came into force. The period of seven years would thus expire on 31st March, 1971, and the suit was filed on 2nd January, 1971. In the light of the above discussion, the plaintiffs had an extended period of limitation from the date of purakadom notwithstanding Parliament extending the Indian Limitation Act to the erstwhile Travancore Territory, and by reason of S. 30 of the Limitation Act of 1963, the plaintiffs could institute a suit on or before 31st March, 1971.” In this case, the suit was filed as early as 1969. Calculating the period from Ex. B3, which is the renewal of the mortgage created under Ex. B2, the suit for redemption filed by the appellant herein and others in O.S. No. 48 of 1969, is well within time. I am, therefore, of the view, that the judgment and decree of the lower appellate court have to be set aside and that of the trial Court has to be restored. 12. For all these reasons, both the Second Appeals are allowed as indicated above. There will be no order as to costs.