Decided on March 04,1971



Venkateswara Rao, J. - (1.) This appeal under clause 15 of the Letters Patent arises out of a suit filed for redemption of a usufructuary mortgage and is directed against the judgment of our learned brother. Parthasarathi, J. in S. A. No. 593 of 1969. Plaintiff in the suit is the appellant before us.
(2.) The suit was filed for redemption of a usufructuary mortgage. Ex. A-1 dated 29-6-1927, which the predecessors - in-title of the plaintiff executed in favour of Yellappa, the father of defendants 1 to 5; and recovery of possession of the properties together with past and future profits. Three items of property, which were hypothecated under Ex. A-1, were conveyed by late Yellappa in favour of the 11th defendant under a registered sale deed. Ex. B-4 dated 9-9-1941. The validity and binding nature of this alienation is impeached in paragraph 7 of the plaint on the ground that the alliance is not a bona fide transferee for value without notice of the mortgage. The suit was resisted by the 11th defendant contending inter alia that Yellappa became the absolute owner of all the properties which were the subject-matter of the mortgage, Ex. A-1, pursuant to an arrangement with the mortgagors and thereafter conveyed in his favour the properties covered by Ex. B-4 for valuable consideration, that he has since then been in uninterrupted possession and enjoyment of the same in his own right and that the suit for possession of the properties purchased by him from Yellappa is, therefore, barred by limitation. Appropriate issues were set down for trial and on a consideration of the evidence adduced by the parties, the learned Additional District Munsiff, Penukonda, held on issue No. 4 relating among other things, to the validity and binding nature of the alienation covered by Ex. B-4 that the transferees, including the 11th defendant, failed to prove that the alienations in their favour "were made bona fide and for valuable consideration". He also accepted the plaintiffs case that the suit mortgage is fully discharged and accordingly decreed the suit against some for the defendants including the 11th defendant, with costs and directed the determination of past and future profits due to the plaintiff in a separate application to be filed by him. Aggrieved by this decision, defendants 11 and 16 carried the matter in appeal to the District Court, Anantapur. The learned Additional District Judge, who dealt with this appeal, pointed out in paragraph 7 of his judgment that "the only question that is urged and argued in the appeal is that the appellants have been in continuous and un-interrupted possession of the respective plaint schedule properties purchased by them since 1941. that the appellants thus perfected title to the suit properties by adverse possession and that the suit is not in time," and ultimately dismissed the appeal on the ground that the suit is governed by Art. 148 and not 134 of the Limitation Act as, according to him, the recitals contained in Ex. B-4 would reveal that the mortgagee did not even profess to convey a larger interest than what he possessed as a mortgagee or an interest which is unencumbered by the mortgage. This decision was, however, reversed by our learned brother. Parthasarathi, J. in the second appeal which the 11th defendant alone thereafter preferred as he was o the view that "there was no reference in the deed of transfer to the interest of the transfer being only that of the mortgagee holding possession of the property" and "on the other hand the transfer purports to be of the interest of the pattadar which as indicated by him is tantamount to the transfer of the absolute ownership in the property" and therefore "there can be little doubt that the transfer made under Ex. B-4 is sufficient to bring it within the purview of Art. 134 of the Limitation Act". Leave to appeal was granted by him while dismissing the second appeal. Hence this appeal under Cl. 15 of the Letters Patent by the plaintiff.
(3.) The conclusion reached by the our learned brother that the transfer covered by Ex. B-4 purports to be of absolute ownership in the property which is undoubtedly a larger interest than what the mortgagee was entitled to under Ex. A-1 is not questioned before us. But the learned counsel for the appellant contends that Art. 134 of the Limitation Act has absolutely no application to this case as, according to him, the respondent is not a bona fide transferee for value without notice of the mortgage. Art. 134 reads as follows:--- "To recover possession Twelve When the transfer becomes of immovable property years known to the plaintiff." conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration.;

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