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Ramchandra Venkaji Naik Vs. Kallo Devji Deshpande - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 167 of 1914
Judge
Reported in(1915)17BOMLR630; 30Ind.Cas.396
AppellantRamchandra Venkaji Naik
RespondentKallo Devji Deshpande
Excerpt:
.....mortgage-mortgagee's possession of the property after mortgagor's death not adverse-to mortgagor-dekkhan agriculturists' relief act (xvii of 1879), section 13-redemption suit-mesne profits from the date of suit.;certain deshpande vatan lands were mortgaged in 1867 by the then vatandar, with possession. the vatandar died in 1873. in 1909, his heir used to redeem the mortgage under the provisions of the dekkhan agriculturists' relief act, 1879. the mortgagee resisted the suit on the ground that he had acquired an absolute title by adverse possession by reason of the provisions of section 5 of the vatan act, which rendered the mortgage invalid after the death of the original vatandar-mortgagor. the lower court overruled the contention; and decreed redemption, awarding mesne profits, that..........have been argued in this appeal; first, that the mortgagee who issued for redemption under the dekkhan agriculturists' relief act in respect of certain vatan property must be taken to have been in adverse possession, and to have acquired an absolute title by reason of the provisions of section 5 of the watan act which render the mortgage invalid after the death of the original vatandar-mortgagor. but the indian limitation act cannot be invoked to enforce any such conclusion, for the presumption is that unless there is some definite indication on the part of the person in possession that he will, from a certain date, claim as absolute owner and not as mortgagee, he can only acquire by adverse possession the limited interest to which he was entitled at the mortgagor's death, namely,.....
Judgment:

Basil Scott, C.J.

1. Two points have been argued in this appeal; first, that the mortgagee who issued for redemption under the Dekkhan Agriculturists' Relief Act in respect of certain vatan property must be taken to have been in adverse possession, and to have acquired an absolute title by reason of the provisions of Section 5 of the Watan Act which render the mortgage invalid after the death of the original vatandar-mortgagor. But the Indian Limitation Act cannot be invoked to enforce any such conclusion, for the presumption is that unless there is some definite indication on the part of the person in possession that he will, from a certain date, claim as absolute owner and not as mortgagee, he can only acquire by adverse possession the limited interest to which he was entitled at the mortgagor's death, namely, that of a mortgagee. He, therefore, remains a mortgagee for the purpose of the redemption suit, even assuming that he has been in possession for more than twelve years since the death of the original mortgagor.

2. The second point is that the learned Judge has decreed mesne profits, that is the net receipts, from the property as from the date of suit against the mortgagee. It is to be observed in the first place that no such claim has, so far as the industry of the pleaders has been able to discover, ever been allowed since the passing of the Dekkhan Agriculturists' Relief Act in 1879. If allowed it must be based on the assumption that the mortgagee has, from the date of suit, been in possession of property which he is not entitled to retain in his possession under the contract between the parties, for the Dekkhan Agriculturists' Relief Act itself makes no provision with reference to profits after the date of the institution of the suit. But the plaintiff, by filing a suit under the Dekkhan Agriculturists' Relief Act, and claiming an account on the footing of Section 13, which gives the go-by to the provisions of the mortgage contract, renders those provisions irrelevant, and it is, therefore, impossible for the Court to discover whether the mortgagee would, if the contractual relations were preserved, be entitled to remain in possession between the date of suit and the date of the decree. Speaking generally, the enforcement of the provisions of Section 13 places the mortgagor in a much more favourable position than he would be in, if he relied upon the terms of the contract, and no presumption arises that the mortgagee is, apart from the provisions of the Dekkhan Agriculturists' Relief Act, not entitled to retain possession after the date of the institution of the suit. It appears to us that this is a case in which we ought to apply the principle laid down by Sir Charles Sargent in janoji v. Janoji I.L.R. (1882) 7 Bom. 185, in which he says :

Remembering that the Act encroaches on existing legal rights, it should, on general principle, not be construed to extend beyond the particular object which the Legislature had in view in passing the Act, and which in the preamble is said in express terms to be to relieve the agriculturist in the Dekkhan from indebtedness. That object is effected when the agriculturist is enabled to discharge his debt and recover his land on far easier terms than those which he has contracted for....

3. We, therefore, vary the decree of the lower appellate Court by deleting the provisions with regard to the payment of mesne profits. The appellant has partly succeeded and partly failed; therefore, each party must bear his own costs in this Court and in the lower appellate Court.


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