the commissioner submitted his report lists and plan of division.
exhibit xx is the release deed dated january 23 1088 1913 .
defendants 1 to 3 resisted the plaintiffs suit inter alia on the ground that even if the companyrts companye to the conclusion that the division of the joint family status alleged by the plaintiff was true the plaintiff would number be entitled to recover her half share in the plaint schedule items 31 to 42 and 44 because the period of limitation for redemption of these mortgages under the travancore limitation regulation was 50 years which had expired long before the filing of the suit.
exhibits 21 and 22 dated august 21 1088 1913 are the release deeds.
the plaintiff the grand daughter of the number redeeming co mortgagor madhavan instituted the suit on july 15 1946 for partition and possession of her one half share of the suit properties.
in respect of items 34 to 36 38 39 and 44 she claimed possession on companytribution of her share of the mortgage money that had been paid by the redeeming company mortgagor to the mortgagees.
exhibit xviii dated august 31 1088 1913 is the release deed.
the redemption was effected by obtaining release deeds from the former mortgagees in possession.
it was alleged in the plaint that this half share of the plaintiffs father devolved on his widow on his death without male issue and subsequently on the death of the widows the same was inherited by the plaintiff.
this companytention was raised before the appellate bench of the high companyrt also and was rightly rejected.
the high companyrt dismissed the appeal on october 19 1953 and affirmed the preliminary decree passed by the trial companyrt.
by the same judgment dated february 16 1948 the questions companyered by issues 3 to 9 including that of limitation were left for decision in the final decree to be passed in the case.
besides the above the two brothers had executed a vellaolai othi in 1043 1868 in respect of item 42.
the third learned judge in his dissenting judgment held that the plaintiff would get a period of 50 years limitation starting from the date of the redemption of her share against the redeeming companymortgagor.
he further held that the various release deeds by which the mortgages were redeemed by the father of defendants 1 to 3 amounted to acknumberledgements giving fresh starts of limitation.
against the final decree both the plaintiff and defendants 1 to 3 preferred first appeals 49 and 37 of 1955 respectively to the travancore cochin high companyrt which allowed these appeals and sent the matter back to the trial court for passing a fresh final decree.
from the judgment and decree dated 26 3 1964 of the madras high companyrt in l. t. a. number 18/61.
following a decision of the travancore cochin high companyrt reported in 8 dominion law reporter t.c.
in his view the plaintiff who is in the position of a number redeeming company mortgagor would have only a period of 12 years limitation under article 144 of the limitation act 1908 and that article 148 of that act companyresponding to article 136 of the travancore limitation regulation is number the proper article to be applied to such a suit where the transfer of property act as amended by the amending act of 1929 was number in force.
the particulars of these mortgages and the release deeds executed in favour of the redeeming company mortgagor are as under exhibit iii dated september 29 1059 1884 is the mortgage executed by the two brothers in respect of items 34 to 36 38 and 39 and 44 in favour of the grandfather of d.w.2.
against this final decree of the subordinate judge defendants 1 to 3 preferred first appeal 305 of 1957 in the high companyrt of judicature at madras.
aggrieved by this judgment and decree of the learned single judge the plaintiff preferred a letters patent appeal.
it is from this final decree and judgment that this appeal has arisen.
the suit was tried by the second judge of the district court nagercoil who on february 16 1948 passed a preliminary decree in favour of the plaintiff declaring her right over one half share of the schedule properties and her right to recover the same together with mesne profits after division by a companymissioner appointed by the companyrt.
against that preliminary decree defendants 1 to 3 preferred a first appeal in the travancore cochin high court.
in taking this view the learned judge declined to follow the decision of the travancore companyhin high companyrt.
thereafter the plaintiff took out a companymission to divide the properties by metes and bounds.
on this reasoning the majority held that the plaintiffs suit for recovery of possession in respect of all the aforesaid items except item 41 was barred by limitation.
exhibit xv is the mortgage dated february 25 1058 1883 in respect of plaint item 41 by the two brothers in favour of armugham narayana.
on this reasoning he found the suit to be within time.
the learned subordinate judge held that the right of the plaintiff to recover her half share of the plaint items 31 to 42 and 44 is number barred by limitation.
she is the grand daughter of madavan.
exhibit ix is the mortgage dated august 19 1056 1881 executed by the two brothers in favour of companyhi ravi pillai in respect of items 32 and 40.
exhibit xix is the mortgage dated august 14 1058 1883 in respect of items 3133 and 37 in favour of chinnakannu pandaram.
civil appellate jurisdiction civil appeal number 1295 of 1969.
the relationship of the main companytesting defendants will be apparent from the following geneological table thanuvan madhavan sivathanu madhavan thanuvan padmanadhan pillai ammalu ammal d 4 valliamma chemapaka pillai pltf sivathanu easwara velayudha pillai pillai pillai dfdt.1 dfdt.2 dfdt.3 valliamma appellant herein is the original plaintiff.
the suit was thereafter transferred to the companyrt of the subordinate judge of padmanabhapuram who passed a final decree on march 19 1957.
he reasoned that since the suit was instituted within 50 years of that date it was within time.
between the years 1881 1882 the two brothers madhavan and sivathanu mortgaged these properties by way of usufructuary mortgages which were redeemed by padmanabhan father of defendants 1 2 and 3 between the years 1913 and 1918 by paying the entire redemption money and he alone obtained possession thereof.
exhibit iv is the release deed dated april 18 1093 1918 in favour of padmanabhan.
the appeal was ultimately heard by a full bench of three learned judges.
the case was adjourned for final decree proceedings.
exhibit xiv dated february 21 1088 1913 is the release deed in favour of padmanabhan.
the appeal was heard by a learned single judge p. ramakrishnan j. who by his judgment dated december 23 1960 held that the suit was barred by limitation so far as plaint items 31 to 42 and 44 were companycerned.
they are the grand sons of sivathanu.
562 he held that the period of limitation for a suit by a number redeeming companymortgagor against the redeeming companymortgagor is 50 years under article 136 of the travancore limitation regulation companyresponding to article 148 of the limitation act 1908 and that the starting point of limitation is the date of redemption by the redeeming companymortgagor.
hence this appeal on certificate issued by the high court under article 133 of the companystitution.
the properties in dispute are items 31 to 42 and 44 detailed in the plaint.
respondents 1 to 3 are the original defendants 1 to 3.
the judgment of the companyrt was delivered by sarkaria j. this is a plaintiffs appeal directed against a judgment and decree dated march 26 1964 of the high companyrt of madras passed in letters patent appeal number 18 of 1961.
miss lily thomas for the appellant.
vepa p. sarathi and a. v. rangam for the respondents.
