1. These appeals from the judgment of a learned Judge of this Court have been placed before a Full Bench in view of certain interesting questions of law, arising for consideration. We shall first take up A. S. Nos. 562 and 629 of 1963.
A. S. Nos. 562 and 629 of 1963.
2. These arise out of O. S. No. 256 of 1952, Munsiff's Court, Trivandrum, a suit for redemption. Redemption was sought of an otti-kuzhikanam (Ext.-- C dated 29-9-1104) for a terra of six years executed by the 10th Defendant in the suit and her mother Matha Kali to one Kumaran Mathu the husband of the 1st Defendant and father of Defendants 2 to 4. Plaintiff is the assignee of the equity of redemption under Ext. A dated 11-7-1951 Defendants 5 to 9 have been found to be trespassers on the mortgaged property after the mortgage. There was a suit O. S. No. 2123 of 1105 (M.E.) by Kumaran Mathu to evict the trespassers. Defendants 1 and 2 in that suit were Defendants 5 and 6 in the redemption suit. Matha Kali was the 4th Defendant. Ext. H dated 21-2-1106 is the written statement of Defendants 1 and 2. It is enough to notice that in this written statement, read as a whole, they clearly stated that they were holding possession in their own right. That the mortgagor was aware of this claim is clear from her written statement (Ext. J). disputing this. The eviction suit was decreed by the trial court on 27-6-1109 (Ext. G) and the decree was eventually confirmed in Second Appeal by the High Court of Travancore on 2-4-1113 (Ext. K). In the redemption suit also the 5th Defendant's written statement raised the plea that his possession was in his own independent right (the suit against him being in effect one for possession on title) and that the mortgagor's rights, if any, had been extinguished. The suit for redemption was decreed by the trial court. On appeal by the 5th Defendant, the decree was reversed and the suit dismissed, upholding the plea of adverse possession. In Second Appeal 44 of 1959 against the same, the learned iudge confirmed the finding of the lower appellate court that the Defendants 5 and 6 were in possession of the properties adversely to the mortgagor but was of the view that the said finding will not dispose of the case; and the question whether redemption could be had must depend upon whether the decree in O. S. No. 2123 of 1105 had become barred or not. The said question was raised in S. A. No. 193 of 1962 preferred before the learned Judge against the proceedings in execution of the decree in the eviction suit (O. S. No. 2123 of 1105). In that Second Appeal the learned Judge held that execution of the decree was not barred, and that even though the redemption suit by the mortgagor was liable to be dismissed on the finding of adverse possession, the mortgagee could execute the decree in the eviction suit and claim possession of the properties, and therefore it was open to the plaintiff in the redemption suit to redeem the mortgage and obtain possession by executing the mortgagee's decree, getting himself impleaded as an additional decree-holder for the purpose. Any contrary conclusion, according to the learned Judge would lead to illogicality. The learned Judge, accordingly dismissed S. A. No. 193 of 1962, the appeal by the judgment-debtors in the mortgagee's suit, and allowed S. A. No. 44 of 1959, of course, only in the sense stated above. Both sides have appealed. A. S. No. 562 of 1963 is by the plaintiff and is directed against the learned nudge's decision as to adverse possession. A. S. No. 629 of 1963 is by the 5th Defendant and he seeks a dismissal of the suit on Ms plea of adverse possession. The decision in these appeals must depend on the question whether Defendants 5 and 6 have established their plea of adverse possession not only against the mortgagee but against the mortgagor also.
3. Ext. C mortgage was usufructuary and the mortgagee was in possession. Under its terms, the mortgagee was to enjoy the property, to pay tax, and, on the expiry of the term, to surrender possession on demand, on payment of the mortgage amount. The mortgagor was not entitled to any portion of the rents and profits. It is well accepted law that the mortgagor's equity of redemption is also capable of possession and therefore can be the subiect-matter of adverse possession. But looking at the matter on first principles, it appears to us that before possession of an independent trespasser who dispossesses a possessory mortgagee can be said to be adverse to the mortgagor's right, there must be some invasion or erosion of his right, such as, to receive rents and profits. It seems difficult to envisage adverse possession of a bare right to equity of redemption, where the mortgagee being in possession is ousted by a trespasser; for, the letter's possession must be referred to its lawful authority viz. that of the mortgagee whom he dispossessed. It is said that a strong current of judicial opinion is against this view that commends itself to us on first principles. We shall proceed to examine these decisions.
4. What have been regarded as the leading authorities on the subject are the decisions of the Full Bench of the Madras High Court in Peria Aiya Ambalam v. Shanmugha Sundaram, ILR 38 Mad 903 = AIR 1914 Mad 334 (FB) and the decision of the Bombay High Court noticed therein, viz. Tara Bai v. Venkata Rao, (1902) ILR 27 Bom 43. In the Madras case a trespasser dispossessed the mortgagee in possession and erected buildings on the land. The mortgagor who came to know of it remonstrated with the trespasser, who openly denied his title. It was held that from the date of such denial the trespasser's possession was adverse to the mortgagor also, as the erection of buildings, which the mortgagor alone could do, amounted to an ouster of the mortgagor. Sankaran Nair. J, who delivered the opinion of the Full Bench observed that:
'Where a stranger dispossesses a mortgagee in possession, whether adverse possession will run against the mortgagor or not depends on the fact whether there was dispossession of the mortgagor also. Mere dispossession of the mortgagee will not amount to such adverse possession; there must at least be notice to the mortgagor that possession is held against him also.'
It was argued before the Full Bench that as the mortgagor is not entitled to sue the trespasser for possession, possession can never be adverse to him; and, contra, that a mortgagor may, by impleading the mortgagee obtain a decree for surrender of the property to the latter. Sankaran Nair, J. observed that it was unnecessary to decide what the proper remedy was.
5. In Vyapuri v. Sonamma Bai Ammani, AIR 1916 Mad 990 (2) = ILR 39 Mad 811 (FB), a Full Bench of the Madras High Court had again to consider the question whether possession by a trespasser who had dispossessed the mortgagor, the mortgage being simple, is not adverse to the simple mortgagee. It was held that it was not, and that rights of the simple mortgagee could not be extinguished by the trespasser's possession for more than 12 years. Sadasiva Iyer. J. who was one of the Judges of the Full Bench expressed dissent from certain observations in Peria Aiya Ambalam's case, AIR 1914 Mad 334 (FB).
6. The law on this aspect, and scores of cases bearing on the point, were exhaustively surveyed by Batty, J. in (1902) ILR 27 Bom 43. The learned Judge summarised the position at page68 thus:
'No doubt, as long as the mortgagee is in possession, he and all claiming under him represent the mortgagor's possession. If the mortgagee in possession is dispossessed on grounds affecting only his right, as for instance, his right as heir to represent the original mortgagee, or his right, as in Parmanandas v. Jamnabai, (1885) ILR 10 Bom 49 to possession in spite of a third party's lien on the property, then the dispossession of the mortgagee obviously does not imperil or call in question any right of the mortgagor, and the mortgagor is not concerned or entitled to insist on being immediately restored to possession and the possession taken is not adverse to him and cannot cause time to run against him. To give the mortgagor a right to insist on immediate possession, there must be an unequivocal ouster preventing the possession of the mortgagor from continuing altogether by leaving no room for doubt that the person taking possession does not profess to represent the mortgagor, but to hold in spite of him. In such a case, the mortgagor is as effectually and unmistakably displaced as if there had been no mortgage at all. When an ouster takes place in that manner the mortgagor knows that no one is in possession who can represent or continue his possession, or who is entitled preferentially to possession, and, therefore, becomes entitled (and it is necessary and his duty, if he does not want right to be barred) to claim possession immediately.'
Actually on the facts of the above case, it was found that there was no notice or knowledge, or any circumstance that could give notice or knowledge, to the mortgagor that the trespasser's possession was either commenced or continued in opposition to, or displacement of, his rights. Subsequent cases have followed either the Madras or the Bombay decision, or both, and added little to their reasoning. (See for instance AIR 1947 Bom 471 (FB)).
7. We wish to extract the comment by the learned Judges of the Madras High Court in Mootha Chettiam Veetil Kelu's case, AIR 1937 Mad 451, on the statement of the law by Batty, J. extracted supra. The learned Judges observed:
'In that case it was found that the mortgagor had no knowledge of the dispossession of the mortgagee and so the latter part of the above passage was an obiter dictum. Batty, J. in his very elaborate judgment, has discussed scores of cases, but we have been unable to find in his judgment any justification for the contention that a mere assertion by person in possession of the property, when the mortgagor has no immediate right to possession, which is not coupled with some act definitely interfering with the rights of the mortgagor, would amount to an ouster of the mortgagor which would force him to take some immediate action under pain of losing rights to the property by adverse possession. In most of the cases quoted, as in the Full Bench case, ILR 38 Mad 903 = AIR 1914 Mad 334 (FB) the mortgagee was ousted from possession, and it was held that such a dispossession would entitle the mortgagor to faring a suit to have the mortgagee restored to possession, and Batty, J. in the passage above quoted states that it is the duty of the mortgagor to do so. In none of the very many cases referred to by Batty, J. docs it appear that a person entered into possession of the land with permission of the mortgagee and did nothing more adverse to the mortgagor than assert a title. Although there are a few passages in the judgment of Batty, J. one of which has been quoted above, which might suggest that a mere assertion by a person in possession denying the rights of the mortgagor, amounted to an ouster of the mortgagor, yet in none of the cases was it so held. On the other hand, there are passages in the judgment of Batty, J. which suggest that a mere assertion of title would not be sufficient.'
We may extract one of the passages from the judgment of Batty, J. which the learned Judges of the Madras High Court had in mind -- and which they also actually quoted -- in making the above comment. It is to be found at the top of page 67 of (1902) ILR 27 Bom 43 and is as follows:
'The mere existence of the claim without possession, actual or constructive, will not suffice as a bar to a title proved or admitted: Secy. of State for India v. Krishnamoni Gupta, (1902) 29 Ind App 104 (PC). And even where there is possession, if it has commenced without any act of dispossession, and is susceptible of explanation by reference to a title not inconsistent with the rights of the person against whom it is set up, or of one holding on behalf of such person or temporarily entitled to exercise his rights, there can be no necessity to call that possession in question, unless and until interference with the right of the person against whom it is alleged has been manifested by acts affecting his existing right, or has otherwise been brought to his knowledge.'
Discussing the position in the light of the facts in Mootha Chettiamveetil Kelu's case, AIR 1937 Mad 451 the learned Judges of the Madras High Court observed at p. 456 of AIR 1937 Mad 451:--
'It is true that the plaintiff could have brought a suit for a declaration of his title, which the Court might or might not have granted; but even that would not prevent the running of time against him if an assertion by Defendant I of his paramount rights amounted to adverse possession. It would therefore appear that the correct test to apply to a case of this kind is whether the possession and acts of the person claiming adversely can be referred to any legal right that he possesses. If so, then the true owner is not bound to sue (indeed he cannot sue except for a declaration) merely because adverse assertions of title are being made.'
We would only add that we would formulate the correct test to apply in such cases by posing whether the acts of the person in adverse possession infringe or invade any of the rights of the mortgagor.
8. In Amar Nath v. Duni, AIR 1935 Lah 315 a Division Bench of the Lahore High Court held that a plea of adverse possession cannot be allowed to prevail because a person who is in fact in possession as a tenant or occupant cannot by a mere assertion and lapse of time, without that assertion having been successfully challenged, obtain a title for himself. The learned Judges followed the principle of the decision of the Privy Council in (Raja) Mohammed Mumta Ali Khan v. Mohan Singh, AIR 1923 PC 118.
9. In Narsingh Singh v. Raghu-vendra Singh, AIR 1957 All 82 a single Judge of the Allahabad High Court considered and dissented from the view expresssed in Peria Aiya Ambalam's case, AIR 1914 Mad 334 (FB) and in AIR 1947 Bom 471 (FB). The learned Judge analysed three classes of cases with respect to which the question of adverse possession against a mortgagor may arise, namely (1) that of a simple mortgage where the mortgagor is in possession and is dispossessed by a trespasser, where adverse possession can be clearly established; (2) that of a mortgagee in possession under the terms of which the mortgagor is entitled to a portion of the rents and profits and a third person interferes with the rights of the mortgagor and realises the rents and profits in assertion of a hostile title; in which case, according to the learned Judge, the mortgagor's equity of redemption will be lost by adverse possession, if perception of rents and profits has continued for over 12 years; and (3) where the mortgagor has parted with all his rights and the mortgagee is given full and complete possession. In such a case, according to the learned Judge, if a trespasser dispossesses the mortgagee and enters into possession to the knowledge of the mortgagor such a dispossession may adversely affect the rights of the mortgagee but not of the mortgagor.
10. We would refer to the observations of Lord Davey in Khiarajmal v. Daim, (1905) 32 Ind App 23 at p. 32 (PC). The question there raised was whether a suit for redemption was barred by adverse possession for more than 12 years by the purchasers at an execution sale of the equity of redemption. The purchasers were nominees of the mortgagees and not independent third parties. Lord Davey observed:
'The circumstances relied on as evidence of adverse possession are -- that since the dates of the execution sale no accounts have been demanded by or rendered to the mortgagors or their representatives, no payments of subsistence money which they were entitled to under the mortgages have been made to them, and the parties after the sale ceased to cultivate the land and left the village, and renewed pattas have been granted to nominees of the mortgagees. If the purchasers had been independent third parties, and accounts had been rendered and payments made by the mortgagees to them instead of to the mortgagors, the circumstances relied on would have been cogent evidence of adverse possession of the equity of redemption in favour of such third parties ... ... ... ... ... ...
But there have been no separate dealings with the equity of redemption as a distinct subject of property. Their Lordships are satisfied that the possession has been that of the mortgagee throughout, and the question at issue is exclusively one between mortgagor and mortgagee. As between them, 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. It is almost unnecessary to add that a renewal of the patas or the making of a new settlement with Government in the name of nominees of the mortgagees did not alter the real title to the lands.'
The above observations seem to US clearly against the contention of the trespassers claiming adverse possession in the instant case.
For, the principle we would deduce from the above observations is this. Property subject to a possessory mortgage comprises two distinct subjects capable of independent possession, the intangible or incorporeal equity of redemption capable only of what, following Salmond, we shall call incorporeal possession, and the tangible or corporeal property itself, capable of corporeal possession. Possession of the corporeal property is with the mortgagee, while possession of the incorporeal equity of redemption remains with the mortgagor. If the mortgagor releases the equity of redemption in favour of the mortgagee lie thereby makes over his incorporeal possession of the equity of redemption to the mortgagee by what might be called a symbolic or notional delivery, that being the only kind of delivery which the incorporeal equity of redemption is susceptible of. Thereafter the mortgagee is in actual possession of both the corporeal property and the incorporeal equity of redemption, and, where the release is invalid in law, mortgagee is in adverse possession of the equity of redemption. But short of such a release, possession of the corporeal property, whether by the mortgagee or by a trespasser thereon, is not possession of the equity of redemption even if it is accompanied by assertion of full title to the property to the knowledge of the mortgagor. It is possession only of the corporeal property and no more. It is no more possession of the incorporeal equity of redemption than assertion of title to, and of possession of, a property by a person not in possession, albeit to the knowledge of the person in actual possession, amounts to possession of the property by the former. The incorporeal possession of the mortgagor of the one subject, namely, the equity of redemption, is in no wise affected by the possession of the other subject, namely, the corporeal property whether by the mortgagee or by a trespasser thereon even if such possession be accompanied by assertion of title to the subject of which the mortgagee or the trespasser is not in possession, namely, the equity of redemption. But where the incorporeal possession of the equity of redemption is accompanied by tangible incidents such as the receipt of rents and profits, perception of such rents and profits by a third party asserting possession of the equity of redemption would be cogent evidence of such possession. There is, however, no such incident in this case and therefore no question of either the mortgagee or of the trespassers on the corporeal property, having trespassed on the equity of redemption, possession whereof was and has continued to be with the mortgagor.
We are here concerned with adverse possession of a bare equity of redemption of the mortgagor. The denial of his title in Ext. H which is claimed to be the foundation for adverse possession occurred during the currency of the mortgage, Ext-C. We have been shown nothing either to refer the possession of the trespassers as against the mortgagor to something other than its lawful source, viz. that of the mortgagee whom they dispossessed, or to amount in any way to an infringement of the bare equity of redemption of the mortgagor. We accordingly hold that the rights of plaintiff in O. S. No. 256 of 1962 to redeem Ext. C had not been barred by adverse possession.
11. We were pressed with the rule of stare decisis, in that in the different territorial regions of this State, namely the areas which were formerly parts of the States of the Travancore and Cochin and the District of Malabar, the trend of decisions was in consonance with the Full Bench ruling in Peria Aiya Ambalam's case, AIR 1914 Mad 334 (FB) and that the principle of that decision had been accepted by the Travancore-Cochin High Court and even by the Kerala High Court. The decision of the Kerala High Court in Ouseph Chacko v. Krishna Pillai Govinda Pillai, 1957 Ker LT 742 = (AIR 1958 Ker 22 (FB)) is not directly in point; and the ruling of the Full Bench in Cicily v. Sulaikha Beevi, 1968 Ker LT 779 = (AIR 1969 Ker 293 (FB) ) left open the question which we have to consider in the present case. We need not refer to the other decisions. As pointed out by the Supreme Court in Vidyacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099 the principle of stare decisis is nothing more than a precipitate of the notion of legal justice and should not be permitted to perpetuate erroneous decisions. (See Sajjan Singh's case, AIR 1965 SC 845). This Full Bench has been constituted to review the position and to lay down the correct law, and we seel no fetter on our powers to do so.
12. In the light of our conclusion, we allow Appeal No. 562 of 1963 set aside the decree of the learned single Judge and of the lower appellate court, and restore the decree made by the trial Court, with costs throughout. We dismiss Appeal No. 629 of 1963 with costs. A. S. No. 630/1963
13. This arises out of S. A. No. 193 of 1962, and the only question here raised is whether the execution of the decree in O. S. No. 2133 of 1105 is barred by limitation.
14. The decree for possession, as affirmed ultimately by the Travancore High Court in Second Appeal, (Ext. K) was dated 3-4-1114. The decree was registered in accordance with the law in Travancore. The first execution petition for possession was filed on 6-8-1117 (M. E.) and was rejected on 10-3-1118, in circumstances to be noticed presently, The second execution petition for attachment towards profits due, was filed on 24-3-1118, and dismissed on 8-11-1951. The third execution petition with which we are concerned, was filed on 1-8-1959. It was common ground that the question whether this execution petition was in time or not, must depend upon whether the first execution petition had been judicially disposed of, or had been merely ministerially consigned to the record room for statistical purposes, if the former, the third execution petition is clearly barred, and, if the latter, not.
15. The circumstances leading to the disposal of the first execution petition are as follows:
There was no prayer in the petition for assessing the profits or ascertaining the value of improvements. The 1st Defendant by an objection dated 10-11-1117, contended that execution cannot be proceeded with, without doing these. On 10-3-1118, the Munsiff passed an order on the objection which reads:
'So, the points to be ascertained are only two, viz., (1) what is the rate of mesne profits and (2) what is value of improvements effected by Defendants 1 to 3 from 29-9-1104. For ascertaining this a commission will be sent on the application of the 1st Defendant and for ascertaining the rate of mesne profits, the same Commissioner will be availed of by the plaintiff. After determining the above points, the petition will be finally disposed of.'
Before the ink was dry on this order, on the same day, the Munsiff passed an order rejecting the execution application. This order was on the execution application itself, and reads:
'Execution of plaintiff's application can be allowed only after determining the question of the rate of mesne profits and value of improvements, for then only the accounts between the parties can be finally settled. Rejected. Ho costs.'
16. It is inconceivable to us how these two totally inconsistent orders could have been passed on the same day, the one promising a final disposal of the execution petition, and the other rejecting it. That the one was passed on the objection statement of the Defendant and the other on the execution petition of the plaintiff is hardly material. These appear to us to be consistent only with the inference that the Munsiff did not wish it to appear that the execution petition was on his file until the mesne profits were assessed and the value of improvements ascertained, and therefore decided to consign the execution petition to the record room for statistical purposes -- a mode of disposal which has been repeatedly deprecated by the courts.
17. In the circumstances, the view taken by the learned single Judge that the execution petition was not barred by limitation is correct. We dismiss this appeal, but make no order as to costs.