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Kunwar Sen and ors. Vs. Darbari Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1916All79; (1916)ILR38All411; 34Ind.Cas.171
AppellantKunwar Sen and ors.
RespondentDarbari Lal and ors.
Excerpt:
mortgage - mortgagee in possession equity of redemption--adverse possession while period of redemption is running--suit to redeem by a person whose name is recorded in revenue papers. - - on appeal the plaintiffs contended that even on the assumption that they had failed to prove that dulha rai represented their ancestor, they had nevertheless (by the evidence they produced) proved that they had been in 'adverse possession' of the equity of redemption. they based this contention on the proved fact that they and their ancestors bad succeeded in having their names entered in the manner we have stated and on the further allegation, (which is probably quite untrue), that they had received the sewai income......plaintiffs had alleged and produced some evidence to show that they had been in receipt of certain sewai income. they also proved, (which apparently is the fact), that sometime after the death of dulha rai they or their ancestor succeeded in having the name of the widow of dulha rai removed from the revenue papers and their own names recorded, also that they successfully resisted an attempt of the heirs of dulha rai to have this record changed in the year 1902. the plaintiffs' witnesses went so far as to swear that the plaintiffs had been receiving rs. 24 annually from the mortgagee. this allegation was quite contrary to the allegation in the third paragraph of the plaint in which the piaintiffs say that this sum of rs. 24 a year had never been paid or realised. the first court found.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. This appeal arises out of a suit in which the plaintiffs sought to redeem a mortgage, dated the 17th of July, 1874. The mortgage was made by one Dulha Rai. The plaintiffs alleged that their ancestor (what ancestor they do not say) was the real owner and that it was only on account of private arrangements that Dulha Rai made the mortgage instead of the ancestor. They then go on to claim that only a small sum is now due on the mortgage, but they are willing to pay whatever the court finds to be due and so redeem the property. The court of first instance, after calling attention to the very vague way in which the plaintiffs alleged their right, held that the plaintiffs had not proved that they had any connection with Dulha Rai, or that their ancestor was the owner of the property. The plaintiffs had alleged and produced some evidence to show that they had been in receipt of certain sewai income. They also proved, (which apparently is the fact), that sometime after the death of Dulha Rai they or their ancestor succeeded in having the name of the widow of Dulha Rai removed from the revenue papers and their own names recorded, also that they successfully resisted an attempt of the heirs of Dulha Rai to have this record changed in the year 1902. The plaintiffs' witnesses went so far as to swear that the plaintiffs had been receiving Rs. 24 annually from the mortgagee. This allegation was quite contrary to the allegation in the third paragraph of the plaint in which the piaintiffs say that this sum of Rs. 24 a year had never been paid or realised. The first court found that the allegation of the plaintiffs that sewai income had been received was untrue. On appeal the plaintiffs contended that even on the assumption that they had failed to prove that Dulha Rai represented their ancestor, they had nevertheless (by the evidence they produced) proved that they had been in 'adverse possession' of the equity of redemption. They based this contention on the proved fact that they and their ancestors bad succeeded in having their names entered in the manner we have stated and on the further allegation, (which is probably quite untrue), that they had received the sewai income. In this connection we may mention that whether they received the sewai income or not, is of very small importance because tinder the terms of the mortgage (whether Dulha Rai was the real mortgagor or not), the mortgagor during the continuance of the mortgage was not entitled to the sewai income. The only reservation in the mortgage was Rs. 24 malikana allowance, which according to the plaintiffs' own admission was never paid or realised. The lower appellate court held against the plaintiffs. The learned Judge says that there might have been something in the plaintiffs' contention had that been their original case, but goes on to hold that it was no part of their original case. The learned Judge dismissed the appeal. In Second Appeal to this Court it was contended that the plaintiffs did foreshadow, at least, in their plaint the case of adverse possession of the equity of redemption, that evidence was on the record and the defendants could not be said to have been taken by surprise, and that accordingly the court ought to have considered this contention and to have decided in favour of the plaintiffs, if they were so entitled. Accepting this stand point, the question we have to decide is whether or not the plaintiffs can be said to have been in 'adverse possession' of the equity of redemption. In other words, whether the right of Dulha Rai and his heirs has by adverse possession vested in the plaintiffs. For the reasons already stated we may disregard altogether the allegation of the receipt of sewai income. There remains only the fact that the plaintiffs succeeded in getting their names recorded in the way we have mentioned. It seems to us that this fact could never confer a title on the plaintiffs. We have great difficulty in seeing how a person could be said to be in 'adverse possession' of the right to redeem immovable property where the right to possession and actual possession is all the time in the hands of the mortgagee. Article 144 of the Limitation Act provides that a suit for possession of immovable property, or any interest therein, is to be brought within twelve: years of the time, when possession of the defendant becomes adverse to the plaintiff. If we assume that Dulha Rai and his heirs were all. along entitled to possession of this property subject to the possessory mortgage of the defendants, it is quite clear that so long as the mortgage subsisted, they could never have brought a suit for possession against the plaintiffs, The mare fact that the plaintiffs had been asserting a title adverse to them would not have entitled the plaintiffs to bring a suit for possession. True it is that they might have brought a suit for a declaration of their title but they were not bound to do so. A parson cannot be said to be in 'adverse possession' against the owner where the former is neither in actual possession nor in constructive possession by receipt of the rents and profits. Reliance is placed upon a Judgment of the Calcutta High Court in the case of Lala Kanhoo Lal v. Musammat Manki Bibi (1901) 6 C.W.N. 601. This case no doubt is to some extent in favour of the plaintiffs. A number of authorities were referred to including the case of Casborne v. Scarfe (1737) 1 Atk. 603 and the Judgment of Lord Hardwicke is quoted. Lord Hardwicke, no doubt, pointed out in that case that an equitable estate might be barred by time just as much as a legal estate, and he there refers to and describes an equity of Redemption. It must be borne in mind, however, that the equity of redemption where the possession remains with the mortgagor is quite different from the equity of redemption where the possession is with the mortgagee. There can be no doubt that an equitable estate, as distinguished from a legal estate, can be barred by time; but it seems to us impossible that any person can be in possession of the right to redeem a mortgage where, under the terms of the mortgage, the mortgagee is entitled to the actual possession, and is in fact in possession thereunder. We think that the view taken by the court below was correct and we accordingly dismiss the appeal with costs.


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