1. This is a Letters Patent appeal from the judgment of Mr. Justice Wassoodew in Second Appeal No. 713 of 1934.
2. The material facts are as follows -:-The suit land was mortgaged with possession to one Tippanna by Venkatrao the manager of a joint family on May 2, 1877. In September, 1877, by reason of certain awards the equity of redemption fell to the share of the other branches of the family of Venkatrao now represented by the plaintiffs, who have sued to redeem the mortgage. The mortgage deed provided that the mortgagee was to pay a net sum of Rs. 82-2-0 to the mortgagor. In spite of the awards in 1877 this annual payment was made first to Bhimrao the son of Venkatrao, and afterwards to defendant No. 4, the son of Bhimrao, never to the plaintiffs. Bhimrao and defendant No. 4 claimed to be entitled to the equity of redemption, and the mortgagee recognised that claim. The plaintiffs were presumably aware of the fact that the moneys due to them were being appropriated by defendant No. 4. In 1918 the heir of the mortgagee executed a lease in favour of defendant No. 4 agreeing to pay an enhanced rent.
3. The question for decision is whether the plaintiffs' right to redeem is barred under Article 144 by the adverse possession of defendant No. 4. Mr. Justice Wassoodew disagreeing with the Courts below has held that the right is barred, relying principally on Puttappa v. Timmaji I.L.R. (1889) 14 Bom. 176, Khiarajmal v. Daim (1904) L.R. 32 IndAp 23 : 7 Bom. L.R. 1 and Lalla Kanhoo Lal v. Musamat Manki Bibi 6 C.W.N. 601.
4. The facts in Puttappa v. Timmaji are thus stated in the head-note. In 1845 the plaintiff's grandfather Appanna mortgaged the house in dispute to Dyavapa with possession. Appanna died in 1849, leaving him surviving his daughter R (the plaintiff's mother), and a daughter-in-law Narsubai, the widow of his predeceased adopted son. In 1856 the mortgagee Dyavapa brought a suit on his mortgage against Narsubai, and obtained a decree against her, S directing (inter alia)' a sale of the house in the event of the non-payment of the mortgage debt. Narsubai in consequence sold the house in the same year (1856) to Ramappa, and paid off the mortgagee, who thereupon at her instance gave up the house to Ramappa. He held possession from 1856 to 1884. In 1881 the defendant Puttappa obtained a decree against Ramappa for Rs. 2,000. In execution of this decree the house was sold, and Puttappa bought it himself, and obtained possession on January 17, 1884. While that suit was pending, the plaintiff Timmaji, the grandson of Appanna, brought a suit (No. 247 of 1881) against the son of Dyavapa, (the original mortgagee), and Ramappa to redeem the mortgage of 1885 and recover possession. The plaintiff obtained a decree against Dyavapa's son for redemption, and proceeded to execute the decree. He was obstructed by Ramappa's son, who however in suit No. 205 of 1882 was found to have no right to the house. The suit under appeal was brought in 1884 by the plaintiff to recover the house from the defendant.
5. It was held on these facts (1) that Narsubai was in adverse possession of the equity of redemption up to 1856, and (2) that Ramappa was in adverse possession thereafter. Ramappa had actual possession ousting the mortgagee so that in that respect the facts were different from those of the present case. But up to 1856 the morgagee was in possession of the mortgaged property, and yet it was held that even during that period Narsubai was in adverse possession of the equity of redemption by reason of the fact that she claimed to be entitled to it and received rents which were payable to the mortgagor tinder the terms of the mortgage.
6. This case was referred to with approval by Mr. Justice Batty in Tarubai v. Venkatrao I.L.R. (1902) 27 Bom. 43 : 4 Bom. L.R. 721 in the same report the learned Judge discussed the possibility of there being a ' virtual dispossession ' of the mortgagor by the invasion of the rights exercisable by him. On that point reference may also be made to Chinto v. Janki I.L.R. (1892) 18 Bom. 51. On the other hand in Tarabai v. Dattaram I.L.R. (1924) 49 Bom. 539 : 27 Bom. I.R. 441 Macleod C.J. referred to Puttappa v. Timmaji I.L.R. (1889) 14 Bom. 176 and suggested that it was not really necessary to determine in that case the nature of Narsubai's possession and that whether Narsubai had adverse possession or not the actual possession of Ramappa for more than twelve years would have barred the suit.
7. The facts in Tarabai v. Dattaram were extremely complicated and have no similarity to those of the present case, but there are observations in the judgment of the learned Chief Justice which are difficult to reconcile with the decision in Puttappa v. Timmaji. For instance he said (p. 546) :-
I think that though a trespasser by holding possession against the mortgagor can bar the mortgagor's right to redeem, it cannot be said that an equity of redemption can be acquired by adverse possession unless the person claiming is in physical possession of the mortgaged property. In the case of a possessory mortgage where possession has been delivered to the mortgagee, a trespasser obtaining possession may hold adversely to the mortgagee but not to the mortgagor.
If the learned Chief Justice meant to say that the equity of redemption can never be acquired by adverse possession, it would seem that he went too far, and it must be borne in mind in connection with this case that the persons claiming adverse possession there (the Agashes) had never had any possession at all except for a period of two years, and apart from that temporary possession-of the property they had done nothing else as far as the report goes to assert or evidence an adverse title. It is not a case, therefore, and there is in fact no case in Bombay, where on facts similar to those in the present case the equity of redemption was held to be still subsisting.
8. As regards Khiarajmal v. Daim I doubt if it can be said to support Mr. Justice Wassoodew's conclusion. In that case the persons who alleged that the equity of redemption was barred were in actual possession of the mortgaged property. They had purchased the equity of redemption at an execution sale and got possession of the land as purchasers. That is a most material circumstance which distinguishes the case from the present. No doubt they relied on other facts similar to the facts relied on by defendant No. 4 here, and naturally it was held that those facts coupled with the actual possession would have amounted to adverse possession against the mortgagors, but for the fact that their possession was not in their own right but as nominees of the mortgagees. Therefore, the mortgagees were really in possession, and it was essentially a question between the mortgagor and the mortgagee. In such circumstances, as their Lordships pointed out (p. 33) :- .neither exclusive possession by the mortgagee for any length of time short of the statutory period of sixty years, nor any acquiescence by the mortgagor not amounting to a release of the equity of redemption, will be a bar or defence to a suit for redemption if the parties are otherwise entitled to redeem.
I do not understand, with all respect to Mr. Justice Wassoodew, how it can be said ' that the case is a clear authority for the view that a stranger claiming the equity adversely need not be in actual physical possession.' As I have said, the stranger who claimed the equity in that case was in actual physical possession.
9. The other case relied on by the learned Judge, Lalla Kanhoo Lal v. Musamat Manki Bibi, is however directly in favour of the view which he has adopted. The facts relied on in that case were that the person claiming adverse possession incurred the responsibilities and exercised the rights of a proprietor, receiving his proportionate share of the rent payable by the mortgagee, who was in possession, and dealing notoriously with the property as if it was his own. It was held that this amounted to adverse possession which extinguished: the equity of redemption, inasmuch as a stranger received rent from the mortgagee in possession and the stranger's possession was on his own behalf and as owner and was quite inconsistent with the title of the true owner.
10. The decision in Puttappa v. Timmaji is to the same effect on similar facts and it has not been overruled. 'We are therefore entitled to follow it in spite of Tarabai v. Dattaram which, as I have explained, is distinguishable on the facts. I do not think it necessary to discuss the authorities of other High Courts for there has been a good deal of difference of opinion, and it is impossible to reconcile all the cases.
11. The question really is whether on general principles the view taken by Mr. Justice Wassoodcw is right. Ownership as has been frequently stated is a bundle of rights, the bare title, the right to possess, the right to enjoy, the right to alienate and so on. When property is mortgaged, a limitation is placed on the title. The mortgagor in lieu of the full title has a right to get rid of the encumbrance or limitation, that is to say he has the equity of redemption. At the same time he may or may not retain his right to possess and enjoy, or while parting with possession he may retain some benefits arising out of the property by way of rent or otherwise, as in the present case. The argument put forward by Mr. Desai on behalf of the appellants is that the enjoyment of such reserved rights by a third party cannot be said to amount to possession of the whole estate of the mortgagor, and he contends that unless there is adverse possession of the whole estate of the mortgagor the equity of redemption is not barred. According to this view the assertion of a right to certain benefits belonging to the mortgagor which are actually enjoyed by the trespasser only means that the latter is in adverse possession of those benefits, and not that he is in adverse possession of some other right, which is not in fact actually possessed.
12. This argument has no doubt a certain plausibility, but in our opinion it is not convincing. The observations of Mr. Justice Batty in Tarubai v. Venkatrao in connection with Puttappa v. Timmaji explain why conduct such as that of defendant No. 4 in the present case may fairly be regarded as amounting to adverse possession of the equity of redemption. The learned Judge quoted a passage from the judgment in Puttappa v. Timmaji (p. 179) :
Narsubai was then in possession of the equity of the redemption adversely to the rightful heirs...arid acting as if she were the owner of the property and receiving the rent which the mortgagee had agreed to pay by the mortgage-bond. Ram-appa derived his title as purchaser from Narsubai, and although possession was probably given him directly by the mortgagee It must be deemed to have been at the desire of Narsubai on his discharging the mortgage-debt.
13. Then he went on to say :
The above passage shows that there was not only a bare claim of the equity, but an active exercise of the rights attaching to a holder thereof. It was not merely that Narsubai paid off the mortgage (for that is not the exercise of a right so much as the discharge of an obligation), but that she took what plaintiff, if in possession of the equity, would have been entitled to, viz., the rent agreed to by the mortgagee in the bond, a right which plaintiff must have known he was deprived of.
14. The circumstances in the present case are very similar. It appears that defendant No. 4 like his father before him has been receiving the rent of this land ever since the beginning, setting up an hostile title in himself and denying the plaintiffs' title. It appears also that in 1918 defendant No. 4 took a new lease from the mortgagee treating himself as the owner of the rights under the original mortgage. The same considerations apply therefore as in Puttappa v. Timmaji, and on principle we see no reason why it should not be held that there has been a virtual dispossession of the mortgagors by which the equity of redemption has become barred. On this question, which is the principal one in the appeal, we hold therefore that Mr. Justice Wassoodew was right.
15. The learned counsel for the respondents raises a further contention that the transaction in question (exhibit 67) which has been held to be a mortgage is not really a mortgage but a lease. On this point we think it is only necessary to say that we see no reason to differ from the view taken by the Courts below. It was no doubt an anomalous mortgage and some of its provisions were like those of a lease. But it is sufficiently clear, we think, that the land was to be held by Tippanna as security for the loan advanced, and he was entitled to retain possession until repayment. To that extent, therefore, it was a mortgage, and in so far as it was a mortgage it was liable to be redeemed.
16. The appeal is dismissed with costs.
17. I agree.