M. Sadanadaswamy, J.
1. The appellant is the plaintiff and the respondents are defendants. The suit was filed for redemption of a usufructuary mortgage executed by Raya Udpa for himself and on behalf of his minor sons on 28-7-1918 under Ex. A-2. One Shankar Udpa had four sons, namely Venkatramana Udpa, Raya Udpa, Narayana Udpa and Subraya Udpa. Venkatramana Udpa died in about the year 1912 without leaving a widow or issues. At the time of the usufructuary mortgage, the three brothers, namely, Raya Udpa, Narayana Udpa and Subraya Udpa, constituted the members of a coparcenary since their father had also been dead. Under Ex. A-2, Raya Udpa mortgaged his undivided one third share in all the properties allotted to the branch of Shankar Udpa in favour of Narayana Udpa and Subraya Udpa. The plaintiff purchased the rights of equity of redemption from the son of the mortgagor, Raya Udpa, who is also named Shankar Udpa. under Ex. A-1 dated 30-8-1949. He, therefore brought the suit for redemption of the mortgage under Ex. A-2.
Narayana Udpa and Subraya Udpa, the other two brothers were the mortgagees of the one third undivided interest of Raya Udpa in turn usufructuary mortgaged their two third undivided interest in all the joint family properties and also the mortgagees' interest which they obtained under Ex. A-2, in favour of Anantha Aithala on the same day as Ex. A-2 under the us usufructuary mortgage deed Ex. B-1. Therefore, Subraya Udpa, the youngest brother sold his one third interest in all the properties to his brother Narayana Udpa on 9-1-1932 under a sale deed Ex. B-4. On the same day i. e. on 9-1-1932 Narayana Udpa executed the usufructuary mortgage in favour of defendant No. 2, Govind Udpa, under Ex. B-12. This mortgage was of the two third mulki right of Narayana Udpa and Subraya Udpa and the mortgagees' right under Ex. A-2. Defendant No. 2 redeemed the properties under Ex. B-1 as evidenced by Ex. P-3 (sic Ex. B-3) dated 9-1-1932. Exs. B-12, B-3 and B-4 are of the same date.
Thus, on 9-1-1932 defendant No. 2 became the usufructuary mortgagee of the properties of all the three brothers, namely, Raya Udpa, Narayana Udpa and Subraya Udpa Narayana Udpa again executed Ex. B-13 fresh charge in favour of Govind Udpa. the second defendant, for Rs. 300/-. The first defendant purchased the right, title and interest of Narayana Udpa on 30-8-1949 under Ex. B-19. Thereafter, the first defendant filed O. S. No. 691 of 1950 on the file of the District Munsiff of Coondapur for redemption of the properties from defendant No. 2. Defendants Nos. 2 to 5 in this suit are brothers and belonged to the same family. The second defendant had taken the mortgage acting as remain of his family. O. S. No. 691 of 1960 (sic) was decreed. There was an appeal and the judgment of the appellate court is marked as B-6, Defendant No. 1 took delivery of all the properties so redeemed under the delivery receipt Ex. B-16-The second defendant filed a second appeal against Ex. B-6 relating to S. No. 166/1 and 166/3 of Koteswar Village.
The judgment of this court fit this appeal is marked as an exhibit in the lower appellate court; the certified copy of which is marked as Ex. B-59. These two survey numbers were also included in the mortgage. la the meanwhile, Narayana Udpa and Anantha Aithala the mortgagees under Ex- B-l effected some alienations. Under Ex. B-9 dated 28-11-1939, Narayana Udpa exchanged items Nos. 10, 11 and 22 of the plaint schedule properties and some other properties in favour of the second defendant and obtained two items ol properties belonging to the second defendant which are not the subject matter of the suit. Under Ex. B-26 Narayana Udpa and Anantha Aithala together granted mullein lease in favour of the second defendant in respect of the plaint schedule items Nos. 13 and 26 on 14-2-1940- Under Ex. B-25 Narayana Udpa and Anantha Aithala granted a mullein lease in favour of the predecessors in title of defendants Nos. 7 and 8 in respect of the plaint schedule items 12 and 23 on 29-11-1929. Again, on 15-4-1930 under Ex. B-29, Narayana Udpa and Anantha Aithala granted a mullein lease in favour of defendant No. 6.
The last alienation is Ex. B-54 dated 10-9-1931 under which Narayana Udpa and Anantha Aithala granted a mullein lease hi respect of the plaint schedule Items Nos. 29 and 30. Ex. B-25 was in favour of the predecessors-in-interest of defendants Nos. 7 and 8 and Ex. B-54 was in favour of defendant No. 6. The plaintiff has filed the suit for redemption and partition and possession of the one third interest of Raya Udpa and he has challenged the alienations as not binding upon him. The trial court granted a decree for redemption and also for partition of one third share in the suit properties; but it held that these alienations are binding on the plaintiff. The plaintiff appealed and cross-objections were also filed on behalf of the defendants. The lower appellate Court partly allowed the cross-objections and held that survey No. 166/ 1C is also included in the mortgage. It also confirmed the finding of the trial court that items Nos. 6, 10, 11, 13, 25, 22, 26. 29 and 30 are also included in the mortgage. But for this modification the decree of the trial court was confirmed.
2. The two main questions for decision in this appeal are whether the alienations are binding on the plaintiff and whether the suit is in time as against the alienees, since there is no appeal against the decree for redemption and partition granted in favour of the plaintiff.
3. The alienations are under Exs, B-9, B-26, B-25, B-29, and B-54- Ex. B-9 is the deed of exchange dated 29-11-1929 entered into by Narayana Udpa. Ex. B-25 dated 29-11-1929 is the deed of mullein lease executed by Naravana Udpa and Anantha Aithala. Ex. B-26 Is dated 14-2-1936 (sic 1940) and is a mullein lease deed executed by Narayana Udpa and Anantha Aithala. Ex. B-29 is dated 15-4-1930 and is a mullein lease deed executed by Naravana Udpa and Anantha Aithala. Ex. B-54 dated 10-9-1931 is also a mullein lease deed executed by Narayana Udpa and Anantha Aithala.
4. It Is contended on behalf of the appellant by Shri Raghavavendra Rao that by the execution of Ex. A-2 for himself and on behalf of his minor sons, Raya Udpa effected a severance of status as between himself and his brothers Naravana Udpa and Subraya Udpa. In : 1SCR93 . Girijanandini Devi v. Bijendra Narain Choudhary it has been observed as follows:--
'(6) In a Hindu undivided family governed by the Mitakshara Law. no individual member of that family, while it remains undivided, can predicate that he has a certain definite share in the property of the family. The rights of the coparceners are denned when there is partition. Partition consists in defining the shares of the coparceners in the joint property, actual division of the property by metes and bounds is not necessary to constitute partition. Once the shares are defined, whether by agreement between the parties or otherwise, partition is complete. The parties may thereafter choose to divide the property by metes and bounds, or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property.
(7) Partition may ordinarily be effected by institution of a suit, by submitting, the dispute as to division of the properties to arbitrators, by a demand for a share in the properties, or by conduct which evidences an intention to sever the joint family; it may also be effected by agreement to divide the property. But in each case the conduct must evidence unequivocally intention to sever the joint family status. Merely because one member of a family severs his relation, there is no presumption that there is severance between the other members; the question whether there is severance between the other members is one of fact to be determined on a review of all the attendant circumstances.'
5. In : 3SCR245 , Mudigowda Gowdappa Sankh v. Ramchandra Revgowda Sankh (dead by his legal representatives & another) it has been held as follows:
'It is now well established that an agreement between all the coparceners is not essential to the disruption of the joint family status, but a definite and unambiguous indication of intention by one member to separate himself from the family and to enjoy his share in severalty will amount in law to a division of status. It is immaterial in such a case whether the other members assent or not. Once the decision is unequivocally expressed, and clearly intimated to his co-sharers, the right of the coparcener to obtain and possess the share to which he admittedly is entitled, is unimpeachable. But in order to operate as a severance of joint status, it is necessary that the expression of intention by the member separating himself from the joint family must be definite and unequivocal.'
In the instant case, it has to be seen whether under Ex. A-2 Raya Udpa expressed a definite and clear intention of separating himself in status. Ex. A-2 is a usufructuary mortgage deed the consideration of which is Rs. 200/-. The recitals show that Raya Udpa mortgaged his one third interest in the entire joint family properties. Part of the consideration is his share of the joint family debt. There is a recital to the effect that the mortgagees may have the patta of the lands changed to their names as mortgagees. It is in evidence that Raya Udpa as well as Narayana Udpa and Subraya Udpa left the village after the date of Ex. B-1. On the same day as Ex. A-2. Narayana Udpa and Subraya Udpa executed a usufructuary mortgage deed in favour of Anantha Aithala In that document the recitals show that they in turn mortgaged their two third undivided share in the joint family properties as well as one third undivided share of Raya Udpa which they obtained as mortgagees under Ex. A-2. Hence. Narayana Udpa and Subraya Udpa did not at any rate construe Ex. A-2 as effecting a severance in status between themselves on the one hand and Raya Udpa on the other.
Though Raya Udpa mortgaged his undivided one third share, that act of his by itself does not have the effect of a severance of status. It is necessary that Raya Udpa should have expressed his intention of severance in status in clear terms. There is no indication of such an intention in the terms of the document Ex- A-2. The son of Raya Udpa. Shankar Udpa, conveyed his interest in the joint family properties under the sale deed Ex. A-2 in favour of the plaintiff on 30-8-1949. The recitals in that document show that Rava Udpa had not separated himself from his brothers at the time of Ex. A-2 and that the joint family properties remained undivided upto the date of sale effected by him. It is unlikely that Rava Udpa's son would represent to the plaintiff that there was no division of status or partition as between Raya Udpa and his brothers, if really Raya Udpa intended to separate himself in status from his brothers at the time he executed Ex. A-2. In the subsequent document executed by Narayana Udpa as well as Subraya Udpa also there is no indication to show that there is a severance of status as between them and Raya Udpa. These documents are of the years 1929 to 1932. Hence, it has to be held that there was no severance of status at the time of the execution of Ex. A-2.
6. Both the lower courts have held that Narayana Udpa has acted as manager of the joint family of himself and his brothers and that the alienations were for the benefit of the estate; they accordingly held that the alienations are binding on the plaintiff Both the lower courts have relied upon Ex. B-30; they came to the conclusion that Narayana Udpa was the manager of the joint family of himself and his brothers during the time when the alienations were effected. Ex. B-30 is a deed of partition under which item No. 29 of the plaint schedule survey No. 69-10 was divided between the branches of the five sons of Govind Udpa, the grand-father of Raya Udpa, Naravana Udpa and Subraya Udpa. The fourth son's branch was represented by the only son. The fifth son's branch was represented by defendant No. 2 the eldest son. The third son's branch was represented by his widow since there were no issues. The first son's branch was represented by the youngest of the three sons, namely, Kodand Udpa.
The second son's branch I. e. the branch of Raya Udpa and his brothers were represented by Narayana Udpa. Ex. B-30 is dated 27-11-1929. Since Narayana Udpa represented the branch of himself and his brothers, both the lower courts came to the conclusion that on the date of Ex. B-30 Rava Udpa must have been dead and that Narayana Udpa must have been the manager of the joint family of himself and his brothers. But, as pointed by the appellant, Kodand Udpa who represented the branch of himself and his two brothers was not the eldest member of his branch; admittedly at least one elder brother of his namely, the first defendant was alive on the date of Ex. B-30. Hence, merely because the second defendant was the elder brother and manager of the family of his branch, it cannot be inferred that the persons who represented the other two branches were also managers of their respective branches. Admittedly, Kodand Udpa was not a manager of the joint family of himself and his brothers being the youngest brother on the date of Ex. B-30.
The defendants pleaded that the alienations are binding on the plaintiff since they were effected by Naravana Udpa in his capacity as manager of the joint family of himself and his brothers- Hence the burden of proving that Narayana Udpa was the Manager and acted in his capacity as such and effected such alienations, was on the defendants. In the written statements filed by defendants Nos. 2 to 8. there is no mention of the date of death of Raya Udpa. The first defendant did not contest the suit. Except the interested testimony of D. W. 2, who is the fourth defendant in the case, who stated that Raya Udpa was dead by the time the alienations were effected by Narayana Udpa, there is no other evidence as to the date of death of Raya Udpa. Admittedly Narayana Udpa was younger to Raya Udpa. Hence, there is no proof of the fact that Narayana Udpa was the eldest member of his branch of the family at the time when the alienations were effected. In the documents under which the alienations were effected, there is nothing to show that Narayana Udpa acted as manager of his branch of the family.
There is no explanation as to why Narayana Udpa has not been examined as a witness on behalf of the defendants since he was the best person who would know whether he had acted as manager or not. Ex. B-12 is a usufructuary mortgage deed dated 9-1-1932 executed by Narayana Udpa in favour of defendant No. 2. The recitals in that document show that what he mortgaged was two third mulgeni right in the properties as well as the one third right of Raya Udpa as mortgagee under Ex. A-2. This is a clear indication that Narayana Udpa was acting in his capacity as mortgagee under Ex. A-2 even in the year 1932. Thus, it is clear that it has not been established that Narayana Udpa was the manager of his branch on the dates of the alienations effected by him. These circumstances have not been considered by the lower courts. The lower courts have drawn a wrong inference from the contents of Ex. B 30- Hence the finding of the lower courts that Narayana Udpa was the manager of his branch of the family at the time of the alienations, cannot be supported and has to be set aside.
7. Shri C. L. Narayana Rao, learned counsel for the respondents, relied on the decisions of the Supreme Court in : 2SCR558 . Jaisri Sahu v. Rai Dewan Dubey and Civil Appeal No. 300 of 1966, Pandurang Mahadeo Kavade v. Annaji Balwant Bokil, D/-5-2-1971 (reported in) : AIR1971SC2228 . It has been observed in : 2SCR558 that the finding of the lower courts that a transaction is supported by necessities, is a finding of fact binding on the court in second appeal. But in this case, the finding of both the lower courts that the alienations are for legal necessities is based on the assumption that Narayana Udpa was the manager and acted as such in effecting the said alienations. Since the finding of both the lower courts that Narayana Udpa was the manager is based on a wrong inference drawn from the contents of Ex. B-30 and by non-consideration of other materials referred to above, the finding of the lower courts is not binding in Second Appeal.
In C. A. No. 300 of 1966 = (reported in) : AIR1971SC2228 (copies of judgment supplied by the Supreme Court Bar Association), it has been held that though an alienee from a karta of the joint family will have to establish that the transaction in his favour is for legal necessity and as such binding on the minor members of the family, in the absence of a plea that the transaction is not binding on the minor members on the ground that the document has not been executed by the karta for legal necessity, it was unnecessary for the alienee to have adduced evidence on this aspect. The issue as to the binding nature was cast on the minor members of the family and they never asked for recasting the issues and they went to trial when there were no Issues. The finding of the lower court as well as the High Court that the transaction is binding on the minor members was confirmed. But, in view of my finding that Narayana Udpa was not the manager of the family on the date of the alienations, these decisions are of no help to the respondents.
8, These transactions must therefore be viewed in the light of the powers of Narayana Udpa as mortgagee under Ex. A-2. According to the recitals In Ex. A-2, the mortgagee Is to be in possession of the properties and to enjoy them. No authority is given to the mortgagee to allow tenants on the lands. In : 1SCR775 . Mahabir Gope v. Harbans Narain Singh it has been held as follows:
'The general rule Is that a person cannot by transfer or otherwise confer a better title on another than he himself has. A mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee. Further, the mortgagee, who takes possession of the mortgaged property must manage it as a person of ordinary prudence would manage It if it were his own; and he must not commit any act which is destructive or permanently injurious to the property; see Section 76 Sub-clauses (a) and (e) of the Transfer of Property Act. It follows that he may grant leases not extending beyond the period of the mortgage; any leases granted by him must come to an end at redemption. A mortgagee cannot during the subsistence of the mortgage act in a manner detrimental to the mortgagor's interests such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the land, thereby de Seating the mortgagor's right to 'khas' possession: it would be an act which would fall within the provisions of Section 76 Sub-clause (e) of the Transfer of Property Act.'
9. In AIR 1956 SC 305. Harihar Prasad Singh v. Deonarain Prasad. it was held that a person cannot confer on another any right higher than what he himself possesses, and therefore, a lease created by a usufructuary mortgagee would normally terminate on the redemption of the mortgage. Section 76(a) enacts an exception to this rule. If the lease is one which could have been made by the owner in the course of prudent management, it would be binding on the mortgagors, notwithstanding that the mortgage has been redeemed. Even in such a case, the operation of the lease cannot extend beyond the period for which it was granted.
10. In : 1SCR988 , Asa Ram v. Mst. Ram Kali it has been held that an agricultural lease created by the mortgagee would be binding on the mortgagor even though the mortgage has been redeemed, provided it is of such a character that a prudent owner of property would enter into it in the usual course of management, and that this being in the nature of an exception, it is for the person who claims the benefit thereof, to strictly establish it. It has further been held that if there Is a prohibition as to the creation of tenancies in the mortgage deed granted by the mortgagee, it would not be binding on the mortgagors, but that where there is no such prohibition, the only consequence is that the parties will be thrown back on their rights under the Transfer of Property Act, and the lessees must still establish that the lease is binding on the mortgagors under Section 76(a) of that Act. It was further held that the creation of a lease in favour of the tenants who acquire occupancy rights will not be regarded as a prudent transaction,
11. Following these decisions it has been held in AIR 1963 Born 42, Kamalakar & Co. v. Gulam Shaft Imambhai Musalman as follows :
'It is undoubtedly true that a mortgagee has got the right of making prudent management of a property that has come into his possession. That right must necessarily be conterminous with his right to continue as a mortgagee and it must come to an end as soon as his right to continue in possession ends. If during that period the mortgagee creates any leases as any other ordinary prudent person would do in respect of his own property, the mortgagor cannot make any grievance whatsoever. From this, the further proposition that if the original lease or grant was within the power of the mortgagee, then it would continue even after the redemption and would bind the mortgagor does not necessarily follow. Much would depend upon the nature of the interest created by the mortgagee. In respect of leases the rights of the parties are governed by the special provisions in the Transfer of Property Act. Section 111(c) provides that a lease of immoveable property determines when the interest of the lessor in the property terminates on. or his power to dispose of the same extends only to, the happening of any event by the happening of such event. This Section in clear and unmistakable terms laws down that once the authority of the lessor to lease the property ends, the lease also necessarily terminates. This Section must apply to all powers and authorities derived either from the Transfer of Property Act or from any other law. The mortgagee's rights cannot be any higher than that of any other lessor whose rights are limited in point of time by the very nature of the relationship between the lessor and the owner. If once this position is reached, the court must hold that the mortgagor is entitled to get possession of the property unless there is some provision in law which creates an exception to this doctrine.'
12. In 1970 S.C. D. 115 = (AIR 1069 NSC 185) All India Film Corpn-Ltd. v. Raja Cyan Nath, it has been held as follows:
'A general proposition of law is that no person can confer on another a better title than he himself has. A mortgage is a transfer of an interest in specific immoveable property for the purpose of securing repayment of a loan. A mortgagee's interest lasts Only as long as the mortgage has not been paid off. Therefore on redemption of the mortgage the title of the mortgagee comes to an end. A derivative title from him must ordinarily come to an end with the termination of the mortgagee's title The mortgagee by creating a tenancy becomes the lessor of the property but his interest as lessor is conterminous with his mortgagee interest. Section 111(c) of the Transfer of Property Act provides that a lease of immoveable property determines where the interest of the lessor in the property terminates on, or his power to dispose of the same, extends only to the happening of anv event by the happening of such event. The duration of the mortgagee's interest determines his position as the lessor. The relationship of lessor and lessee cannot subsist beyond the mortgagee's interest unless the relationship is agreed to by the mortgagor or the person succeeding to the mortgagor's interest may elect to do. But if he does not. the lessee cannot claim any rights beyond the term of his original lessor's interest. These propositions are well understood and find support in two rulings of this court in : 1SCR775 and : 1SCR988 .
(9) To the above propositions there Is. however, one exception. That flows from Section 76(a) which laws down liabilities of a mortgagee in possession. It is provided there that when during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property, he must manage the property as a person of ordinary prudence would manage it if it were his own between him and the tenants.'
Dealing with the contention that the tenancy continued after the termination of the mortgage under the provisions of the East Punjab Urban Rent Restriction Act. 1949. it was held that the termination of the mortgagee interest terminated the relationship of landlord and tenant and it could not, in the circumstances, be said to run with the land and that the Act could not apply any further since there was no landlord and no tenant after the termination of the mortgagee interest.
13. The terms of Section 76(a) of the Transfer of Property Act show that the mortgagee must manage the property as a person of ordinary prudence would manage if it were his own 'during the continuance of the mortgage'- The transaction under Ex. B-9 by virtue of which Narayan Udpa exchanged certain items of mortgaged properties or certain other items of properties cannot be said to be the act of a prudent manager. Hence, by the unilateral act of the mortgagee, the mortgagor's interest could not be extinguished. Hence, the transaction under Ex. B-9 is not binding on the plaintiff- The other four transactions under Exs. B-25, B-26. B-29 and B-54 being in the nature of permanent leases which purported to create an interest in the lessees beyond the duration of the mortgage are also not binding on the plaintiff and the interest of the lessees terminated on the redemption of the mortgage. Hence, the plaintiff is entitled to a decree declaring that all these alienations are not binding on him.
14. The next question to be considered is the question of limitation. Both the lower courts have held that the suit as against the alienees is barred under Article 144 of the Indian Limitation Act, 1908 since they proceeded on the basis that the alienations were effected by Narayana Udpa as manager of the joint family of himself and his brothers. But, I have already held that Narayana Udpa acted in his capacity as mortgagee under Exhibit A-2. when he effected those alienations. Hence Article 134 of the Limitation Act applied to the facts of this case. The period of sixty years provided under Article 148 is cut down to the shorter period of twelve years under Article 134. The starting point of limitation under Article 134 is the date when the transfer becomes known to the plaintiff. According to the plaintiff, he came to know of the alienations only just prior to the filing of the suit.
The trial court held, after considering the evidence of D. W. 2 who stated that Ray a Udpa's wife and children were staying with Naravana Udpa and that they were maintained by him, that the evidence available is absolutely inadequate to show that Raya Udpa during his lifetime, and his son. Shankara, subsequently, had any knowledge of the various alienations made by Narayan Udpa in respect of Rava Udpa's share. The lower appellate court has not discussed this aspect of the case and has given no finding. It is contended on behalf of the respondents that on the basis of this evidence of D. W. 2, it must be inferred that the plaintiff's vendor Shankar Udpa had knowledge of the alienations made by Narayana Udpa. It is also urged that plaintiff is the resident of the same village where the mortgaged properties are situated, that buildings have come up and improvements have been made in the alienated lands and that the plaintiff must be presumed to have had knowledge of the alienations.
Since the period open to the mortgagee (mortgagor ?) to redeem the property is cut down under Article 134 of the Limitation Act, the burden of proving, that the plaintiff had knowledge of the alienations beyond twelve years prior to the date of the suit, is on the alienees the defendants. There is no such plea in the written statement of the contesting defendants. Except the evidence of D. W. 2 referred to already there is no other evidence to show that the plaintiff had knowledge of these alienations at any time beyond twelve years prior to the date of the filing of the suit. Hence, it must be held that the plaintiff's , suit is not barred by limitation. The finding of the lower courts that the suit is barred by time Is unsustainable and is set aside.
15. In the result, the appeal is allowed and the decree of the lower courts is modified. The decree of the lower courts relating to the binding nature of Exhibits B-9, B-25, B-29 and B-54 is set aside. There will be a decree declaring that the transactions under Exhibits B-9, B-25. B-26, B-29 and B-54 are not binding on the plaintiff. In other respects, the decree of the lower appellate court is confirmed.
16. The respondents will pay the costs of this appeal to the appellants.