Judgment : Whether the period of limitation of a suit for redemption and recovery of possession by the mortgagor against an assignee mortgagee is covered under clause (a) or clause (b) or Article 61 of Limitation Act 1963? This is the question to be decided in the appeal. 2. The facts are not disputed. Plaint schedule property belonged in jenmon to Suriachira Ganapaty Devaswom. On 11.1945, under Ext.A4 registered mortgage deed 308/1945, for discharging debts, after receiving Rs.800/-, the mortgage money, respondent Devaswom mortgaged plaints schedule properties in favour of Ayyaswamy Naicker who was put in possession of the mortgaged properties on condition that he is entitled to appropriate the profits towards the interest due on the mortgage money and shall measure 122 paras of paddy annually on or before 30th Makaram every year. In 1965, mortgagee Ayyaswami Naicker assigned his mortgage right in favour of Kutttan. Kuttan has been in possession of the property as an assignee mortgagee. Subsequently, appellant got assignment of that mortgage right from Kuttan and he has been in possession and paid purappad due to respondent Devaswom upto 1150 ME. Later, appellant filed O.A.935 of 1975 for purchasing jenmom right of the mortgaged properties before Land Tribunal, claiming the benefit of Kerala Land Reforms Act (hereinafter referred to as the “Act”). Land Tribunal, accepted his case and allowed him to purchase the jenmon right. Respondent challenged the order before Appellate Authority (Land Reforms). Appeal was dismissed. It was challenged before this court in CRP 61 of 1981. As per Ext.A1 order dated 111.1983, this court set aside the findings of the Land Tribunal as confirmed by the Appellate Authority and found that appellant is only a mortgagee and he is not entitled to the benefit of the Act. This court found that Ext.A1 does not create tenancy arrangement and it is only a mortgage pure and simple and appellant is not entitled to the benefit of Section 6B of the Act and dismissed the O.A. Respondent, thereafter instituted O.S.433 of 1985 before Munsiff Court, Palakkad for redemption of Ext.A4 mortgage and recovery of possession of the property from appellant. His wife was also impleaded as second defendant. His wife was also impleaded as second defendant. Appellant resisted the suit contending that plaint schedule properties are in the joint possession of appellant and his wife and though Ext.A4 is styled as a mortgage it is in fact a lease and appellant is therefore entitled to the benefit of the Act. It was also contended that in any event, suit is barred by limitation, as it was a not instituted within 12 years from the date of assignment of mortgage right or from the date of knowledge of the assignment and as appellant and his predecessors have been in possession of the property for more than 12 years openly and continuously asserting their hostile title, title of the respondent is lost by adverse possession. Second defendant, wife of appellant, also filed a separate written statement contending that mortgagee Kuttan was paying rent to the Devaswom and his tenancy right was assigned to appellant and the wife and both of them are entitled to the benefits of the Act and judgment in CRP 61 of 1981 is not binding on second defendant and the suit is to be dismissed. 3. Learned Munsiff, on analyzing Exts. A1 to A4 found that appellant is only an assignee mortgagee and the period of limitation for redemption and recovery of possession is as provided under clause (a) of Article 61 of Limitation Act 1963 and the suit is within the period and granted a decree for redemption and recovery of possession with arrears of purappad at Rs.3860/-. Appellant was also directed to pay the future profits @ Rs.1000/-per annum till actual surrender. Appellant challenged the judgment before Sub Court, Palakkad in A.S.81 of 1991. Second defendant challenged the judgment in A.S.90 of 1991. Learned Sub Judge, on re-appreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. Second appellant did not challenge the judgment further. Only first defendant has preferred the appeal. 4. Second appeal was admitted formulating the following substantial questions of law. 1) Whether courts below were correct in law in holding that Article 61(a) of Limitation Act applies to a suit by a mortgagor to recover possession of immovable property mortgaged and transferred by the mortgagee. 2) Whether courts below were justified in granting a decree for redemption when suit was not laid within 12 years after the transfer was known to the plaintiff. 2) Whether courts below were justified in granting a decree for redemption when suit was not laid within 12 years after the transfer was known to the plaintiff. 3) In the absence of pleading and finding regarding date of knowledge about the transfer by the mortgagee, whether courts below were justified in holding that suit is not barred by time. 5. Respondent filed a cross objection. But appeal memorandum in the cross objection does not show any substantial question of law to be formulated. No substantial question of law was also formulated in the cross objection. 6. Learned counsel appearing for appellant and respondent were heard. The argument of the learned counsel appearing for appellant is that plaint itself discloses that Ext.A4 mortgage was in 1945 and mortgagee Ayyaswami Naicker assigned the mortgage right in favour of Kuttan in 1965 and therefore transfer by the mortgagee is known to the respondent in 1965. It was also argued that plaint also shows that Kuttan later assigned the mortgage right in favour of appellant who paid purappad till 1150 ME and therefore suit should have been filed within 12 years from the date of knowledge of transfer by the mortgagee and as no suit was filed within 12 years from 1965, the suit is barred. The argument of learned counsel is that a suit for redemption and recovery of possession as against an assignee mortgagee is governed not under clause (a) of Article 61 but under clause(b) of Article 61 and as the period available is only 12 years under Article 61(b) and suit was not filed within 12 years from the date of knowledge of the transfer by the mortgagee, the decree and judgment passed by courts below are not sustainable. 7. 7. Learned counsel appearing for respondent argued that Article 61(a) was correctly applied by the courts below and if clause(b) is to be applied, transfer by the mortgagee must be of a larger interest than the mortgage right and what was assigned by the mortgagee Ayyaswami Naicker in favour of Kuttan is only his mortgage right and what was purchased by appellant from Kuttan was also only the mortgage right and therefore appellant is only an assignee mortgagee and not an assignee of a larger interest than that of a mortgage right and therefore Article 61 (a) is the relevant article to be applied and not Article 61(b) and courts below rightly granted the decree for redemption and recovery of possession. .8. Part V of Limitation Act. 1963 deals with suits relating to immovable property. Article 61 deals with suits by a mortgagor. Under clause(a), period of limitation for a suit by a mortgagor to redeem or recover possession of immovable property mortgaged is 30 years. The period will start to run when the right to redeem or to recover possession accrues. Under Clause(b), period of limitation for a suit .by a mortgagor to recover possession of immovable property mortgaged and afterwards transferred by the mortgagee for a valuable consideration is 12 years. The period will start to run when the transfer becomes known to plaintiff. Under Clause (c) period of limitation for a suit by a mortgagor to recover surplus collections received by the mortgagee after the mortgage has been satisfied, is three years and the period will start to run when the mortgagor reenters the mortgaged property. 9. Before enactment of Limitation Act 1963, the corresponding provision under Limitation Act 1908 to Article 61(b) was Article 134 and that of Article 61(a) was Article 148. Under Article 148, intead of 30 years as provided under Article 61(a), the period was 60 years. 10. Both Clause (a) and (b) of Article 61 cover suits by a mortgagor to recover possession of the property mortgaged. But there are distinctive difference in regard to their scope and operations. Clause(a) covers suits to redeem and/or to recover possession of immovable property mortgaged. Clause(b) relates to suits to recover possession. Under Clause(a), suit may be against the mortgagee, his successor in interest or assignees. But under clause(b), suit contemplated is only against a transferee from the mortgagee for valuable consideration. Clause(a) covers suits to redeem and/or to recover possession of immovable property mortgaged. Clause(b) relates to suits to recover possession. Under Clause(a), suit may be against the mortgagee, his successor in interest or assignees. But under clause(b), suit contemplated is only against a transferee from the mortgagee for valuable consideration. The period of limitation under clause(a) is 30 years, which was reduced from 60 years under Article 148 of Limitation Act, 1908. Under Clause(b) it is only 12 years. The starting point of limitation under clause(a) is the date, when the right or redeem or to recover possession accrues. But under clause(b), it is when the transfer becomes known to plaintiff. The language of clause (a) is comprehensive enough to cover suits for recovery of possession of mortgaged property against a transferee from the mortgagee also. Mortgagee includes his legal heirs, legal representatives and assignees. It is not restricted to suits for redemption simplicitor. Though Article 148 of 1908 Act provided that the suit contemplated is against the mortgagee, when 1963 Act was enacted, the words “against the mortgagee” was dropped and clause(a) of Article 61 will govern suit for redemption and/or recovery of possession of property mortgaged against a transferee from the mortgagee also. Clause(b) also deals with such suits. But under that clause, transfer must have been for valuable consideration and the transfer shall not be of his interest as a mortgagee but shall be a larger interest. 11. A suit by a mortgagor for redemption or recovery of possession against the mortgagee, his successor in interest as well as assignee is covered under Clause(a) of Article 61. It cannot be said that a suit for redemption and recovery of possession of the property mortgaged against an assignee mortgagee is not covered under Article 61(a) but only under Article 61(b). .12. The transfer contemplated under Article 61(b) is not a mere transfer of interest of the mortgagee under the mortgage but transfer of a larger interest. In James Skinner V. Naunihal Singh (31. Bom. L.R.854) the Privy Council clarified the position thus. .“The transfer of property mortgaged contemplated by Art. 134, Limitation Act, 1908, is admittedly something other than express transfer of the original mortgage. The article contemplates a transfer by a mortgagee purporting to transfer larger interest than that given by the mortgage or at any rate an interest unencumbered by a mortgage. L.R.854) the Privy Council clarified the position thus. .“The transfer of property mortgaged contemplated by Art. 134, Limitation Act, 1908, is admittedly something other than express transfer of the original mortgage. The article contemplates a transfer by a mortgagee purporting to transfer larger interest than that given by the mortgage or at any rate an interest unencumbered by a mortgage. The article is not, however, limited in its application to cases where the mortgagee transfers the property mortgaged while still ostensibly a mortgagee, nor to cases where the mortgagee transfers possession which he had obtained qua mortgagee. It is immaterial, for the purpose of Art.134, that the mortgagee should have thought he was absolute owner if in fact he was mortgagee and immaterial whether he got possession before, under or after the mortgage if in fact he purported to transfer the property to the transferee. Article 134 does not protect the transferee of a mortgage by a express transfer, nor does it protect a person who has taken a transfer only of a mortgage but has taken it without his knowledge, mistakenly supposing that he was getting something better”. .13. The principle is that the transfer must be for valuable consideration and without notice of the fact .that what the mortgagee was conveying to him, was merely his right, title and interest as a mortgagee. The transfer contemplated is not a transfer of his interest as a mortgagee, but a larger interest. .14. Chief Justice Sir Arnold White following the decision of Privy Council in Padanath V. Gisborne (14 M.I A1) in Vythilingam Pillai V. Kuthiravattah Nair (1906 (29) ILR Madras 501) answered the question thus. .“The defendants Nos.2 and 3 further rely on article 134 of the Limitation Act as a bar to the whole suit. We, however, agree with the Courts below that article has no application to the present case. In order to have the benefit of that article the purchaser must show that he is the purchaser of an absolute title, but exhibit I under which defendants Nos.2 and 3 claim refers to the title of the first defendant’s family as a kanom and anubhavan right, and hands over the title-deeds on which that right was claimed. Exhibit A was therefore no more than as assignment of those rights. Exhibit A was therefore no more than as assignment of those rights. To borrow the language of the Privy Council in Radanath Doss V. Gisborne (1) when dealing with the corresponding provision of he land under the Act of 1859 “We can find in this deed no evidence of a statement on the part of the vendor or of any belief on the part of the purchasers that the property was a property which the vendor claimed to hold by what we should call in this country a fee simple title”, and we therefore think that “the first requisite in the law of limitation is not made out, and that the appellants have not shown that they are purchasers of this specific property as an absolute property in contradistinction to a mortgage property upon a contract by the vendor to convey the property to them as an absolute property”, .15. A Full Bench of High Court of Allahabad in Chunai V. Ran Prasad (AIR 1951 Allahabad 167) had considered this question. Interpreting the transfer contemplated under Article 134 of the Limitation Act 1908, the principle behind the enactment of Article 134 was pointed out as follows:- .“The result, therefore, is that to my mind, Art.148 applies to a suit for possession or for redemption against a mortgagee, against the heirs of the mortgagee, against persons to whom the mortgagee’s interest only has been transferred, against person who have purported to purchase the property but without paying valuable consideration therefore and against persons who have purchased the property with notice of the mortgage and are thus estopped from denying the tide of the mortgagor. The burden of proving that the transferee had notice of the mortgage and that he was estopped from denying the mortgagor’s title, must be on the plaintiff. To all other suits for possession of immovable property, where property was transferred by a mortgagee in possession to a transferee for valuable consideration, Art. 134 is applicable and in such a suit it is not necessary for the defendant transferee to prove that he is a transferee in good faith. To all other suits for possession of immovable property, where property was transferred by a mortgagee in possession to a transferee for valuable consideration, Art. 134 is applicable and in such a suit it is not necessary for the defendant transferee to prove that he is a transferee in good faith. This would not result in any practical difficulty as the computation of the period of limitation and the applicability of the appropriate article of the Limitation Act would depend in the first instance on the nature of the suit and the allegations in the plaint, but the ultimate decision on the point would depend on the facts found by the Court”. 16. Apex Court in Nani Bai V. Gita Bai(AIR 1958 SC 706), construing Article 134 of Limitation Act corresponding to the present Article 61(b) held: “Under 134, the plaintiff has to sue to recover possession of immovable property mortgaged and afterwards transferred by the mortgagee for a valuable consideration, within 12 years from the date the “transfer becomes known to the plaintiff”. On the other hand, it has been contended on behalf of the plaintiff that usual rule of 60 years’ limitation under Art.148 of the Limitation Act, governs the present case. On this part of the case, the defendants suffer from the initial difficulty that the sale deeds relied upon by them in aid of the plea of limitation under Art. 134 have not been brought on the record of this case, and therefore, the Court is not in a position to know the exact terms of the sale-deeds. This difficulty the appellants sought to overcome by inviting our attention to the statements made in paragraph 8 of the plaint. But those are bald statements giving the reasons why the defendants other than the original mortgagee, were being impleaded as defendants. There is no clear averment in that paragraph of the plaint about the extent of the interest sold by those sale-deeds and of the transfers referred to therein. The Court is, therefore, not in a position to find out the true position. Those sale-deeds themselves were the primary evidence of the interest sold. There is no clear averment in that paragraph of the plaint about the extent of the interest sold by those sale-deeds and of the transfers referred to therein. The Court is, therefore, not in a position to find out the true position. Those sale-deeds themselves were the primary evidence of the interest sold. If those sale-deeds which are said to be registered documents, were not available for any reasons, certified copies thereof could be adduced as secondary evidence, but no foundation has been laid in the pleadings for the reception of other evidence which must always be of a very weak character in place of registered documents evidencing those transactions. Article 134 of the Limitation Act contemplates a sale by the mortgagee in excess of his interest as such. The legislature, naturally, treats the possession of such transferees as wrongful and therefore, adverse to the mortgagor if he is aware of the transaction. Hence, the longer period of 60 years for redemption of the mortgaged property in the hands of the mortgagee or his successor-in-interest, is cut down to the shorter period of 12 years wrongful possession if the transfer by the mortgagee is in respect of a larger interest than that mortgaged to him. In order, therefore to attract the operation of Art.134, the defendant has got affirmatively to prove that the mortgagee or his successor-in-interest has transferred a larger interest then justified by the mortgage. If there is no such proof, the shorter period under Art.134 is not available to the defendant in a suit for possession after redemption”. 17. In order to attract Clause(b) of Article 61, the suit must be for recovery of possession, by a mortgagor against a transferee from the mortgagee. It must be a transfer of larger interest than that of the interest as a mortgagee. If not, a suit for redemption and/or recovery of possession as against the assignee mortgagee is governed by clause(a) of Article 61 and not clause(b) of Article 61. 18. Even if the suit is covered under clause(b) of Article 61, burden is on the defendant who claims availability of only a lesser period of limitation to prove, when the plaintiff acquired knowledge of the transfer of interest of the mortgagee. Privy Council in Radhanath V. Gisbiorne and Co. (1871 14 Moo. 18. Even if the suit is covered under clause(b) of Article 61, burden is on the defendant who claims availability of only a lesser period of limitation to prove, when the plaintiff acquired knowledge of the transfer of interest of the mortgagee. Privy Council in Radhanath V. Gisbiorne and Co. (1871 14 Moo. IA 1) construing this aspect, held that Article 134 is a special article cutting down the period which a mortgagor may have against a mortgagee and is of a stringent kind and hence any person claiming the benefit of such a stringent provision should clearly and distinctly show that he fills the position of the person contemplated by Article 134 as a person to be protected, when appellant claims the benefit provided under clause(b) of Article 61, which curtails the period of limitation available to a mortgagor under clause(a), it is for him to plead and prove that the transfer obtained from the mortgagee was not the transfer of interest as a mortgagee but a larger right or an absolute right. Then only the transferee can claim that he is a bonafide transferee as provided under clause (b) of Article 61 and so the period of limitation available to the mortgagor is a lesser period. 19. Appellant has no case that what was assigned by Ayyaswami Naicker was not his right and interest obtained under the mortgage but a larger right. He has also no case that assignee Kuttan had assigned a larger right than what was obtained by him from his assignor the mortgagee Ayyaswami Najcker. Therefore the article which governs the suit instituted by the mortgagor respondent against appellant, an assignee mortgage is clause(a) of Article 61 and not clause(b). Therefore the period of limitation is not 12 years as canvassed by the appellant but 30 years from the date on which the right to redeem or recover possession accrued. It is not disputed that appellant is and assignee mortgagee and a acting upon Ext.A4 mortgage, paid the purappad provided thereunder to the mortgagor till 1150 ME. In such circumstances, finding of courts below that suit is not barred by time and respondent is entitled to redeem and recover possession warrants no interference. 20. It is not disputed that appellant is and assignee mortgagee and a acting upon Ext.A4 mortgage, paid the purappad provided thereunder to the mortgagor till 1150 ME. In such circumstances, finding of courts below that suit is not barred by time and respondent is entitled to redeem and recover possession warrants no interference. 20. Though respondent filed a cross objection, he did not prefer a cross objection with regard to the inadequacy of future profits directed to be paid by trial court, before the first appellate court. No substantial question of law was shown in the memorandum of cross objection. No substantial question of law on the adequacy of the quantum fixed by the courts below is involved. Hence cross objection is dismissed. Appeal and cross objection are dismissed. No costs.