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M.A. Hassan Vs. Kunjulakshmi Amma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKerala High Court
Decided On
Case NumberA.S.A. No. 10 of 1975
Judge
Reported inAIR1977Ker204
ActsLimitation Act, 1963 - Articles 64 and 65; Transfer of Property Act, 1882 - Sections 58 and 60; Code of Civil Procedure (CPC) , 1908 - Order 34, Rule 8
AppellantM.A. Hassan
RespondentKunjulakshmi Amma and ors.
Appellant Advocate K.S. Paripooranam, Adv.
Respondent Advocate P. Sukumaran Nair, Adv.
DispositionAppeal dismissed
Cases ReferredKochappi Kunji v. Damodaran
Excerpt:
- - we are satisfied that they do not. patta, ss is well-known, is not evidence of title; and as far as the receipt of the land acquisition amount was concerned the provisions of the act contain sufficient indication that the mortgagee, as a person interested in the property acquired, can well be a party to the land acquisition proceedings, and is entitled to claim the mortgage money from the land acquisition amount......two main contentions. first, that the defendants had prescribed title against the plaintiff by adverse possession and limitation; and second, that in any event, the appellant was entitled to plead tenancy rights under the kerala land reforms act, 1963 (act i of 1964) and to claim fixity of tenure under the provisions of the said act. on the first question of adverse possession and limitation, it was argued that ever since ext. d-7 release deed of 1947, the second defendant had remained in possession as absolute owner, and as the same had continued for over 12 years, the rights of the plaintiff had been barred and extinguished. it was stressed that subsequent to ext. d-7, patta had been transferred in the name of the second defendant as evidenced by ext. d-8, that the property tax.....
Judgment:

Gopalan Nambiyar, Ag. C.J.

1. This appeal is with the leave of a learned Judge of this Court in S.A. No. 672 of 1971. The matter arises out of a suit for redemption of about 19 cents of land. The 2nd defendant in the suit is the appellant before us. Ext. P-1 dated 23-6-1102 M.E. 5-2-1927 is the mortgage, styled 'Otti Kuzhikanam, sought to be redeemed. It was granted by one Kunjulek-shmi Amma, the mother of the minor plaintiff, to the defendants. By Ext. D-3 dated 20-9-1111 = 2-5-1936 a melotti was granted for and on behalf of the plaintiff by the plaintiff's uncle to the 2nd defendant. This was followed by a sale deed Ext. D-2 dated 2-1-1112 = 17-8-1936 by the same uncle to the 2nd defendant. The mortgage Ext. D-1 was released to the 2nd defendant by Ext. D-7 dated 26-10-1112 = 9-6-1947. The plaintiff attained majority on 24-10-1950, and the suit was laid on 29-9-1965 ignoring Ext. D-3. The trial court decreed the suit. On appeal, the lower appellate court reversed the said judgment and decree and directed that the plaintiff's suit be dismissed. On Second Appeal, a learned Judge of this Court set aside the judgment and decree of the lower appellate court and restored that of the trial court.

2. Counsel for the appellant urged two main contentions. First, that the defendants had prescribed title against the plaintiff by adverse possession and limitation; and second, that in any event, the appellant was entitled to plead tenancy rights under the Kerala Land Reforms Act, 1963 (Act I of 1964) and to claim fixity of tenure under the provisions of the said Act. On the first question of adverse possession and limitation, it was argued that ever since Ext. D-7 release deed of 1947, the second defendant had remained in possession as absolute owner, and as the same had continued for over 12 years, the rights of the plaintiff had been barred and extinguished. It was stressed that subsequent to Ext. D-7, patta had been transferred in the name of the second defendant as evidenced by Ext. D-8, that the property tax receipts had also been obtained in his name (vide Ext. D-9), and that in land acquisition proceedings relating to a portion of the property (nearly six or seven cents in extent) the compensation amount had been claimed by, and paid to, the second defendant, and no portion of it had been paid to the plaintiff. These are the acts alleged and relied upon to constitute ad-verse possession and acquisition of title by the plaintiff.

It is unnecessary for us to survey exhaustively the circumstances under which there can be adverse possession by a mortgagee against the mortgagor. This was done by a Full Bench of this Court in Kochappi Kunji v. Damodaran (1970 Ker LT 610) : (AIR 1971 Ker 38 (PB)). One of us (myself) delivering the judgment on behalf of the Bench referred to the various decisions dealing with this aspect of the matter. It was ruled that property subject to a possessory mortgage comprised two distinct subjects capable of independent possession, namely, the intangible or incorporeal equity of redemption and the tangible or corporeal property itself, capable of corporeal possession. While possession of the corporeal property is with the mortgagee, possession of the incorporeal equity of redemption remains with the mortgagor. If the mortgagor releases the equity of redemption in favour of the mortgagee he thereby makes over his incorporeal possession of the equity of redemption to the mortgagee.

Thereafter, the mortgagee is in actual possession of both the corporeal property and the incorporeal equity of redemption, and where the release falls short of this, possession of the corporeal property, whether by the mortgagee or by a trespasser, 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 only possession of the corporeal property and no more. But where the incorporeal possession of the equity of redemption is accompanied by tangible acts 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. (We have supplied the necessary emphasis in summarizing the Full Bench ruling).

3. In the light of the principles laid down by the Full Bench, we have to see whether, in the instant case, acts and conduct of the mortgagees amount in any way to an infraction or violation of the rights of the mortgagor. We are satisfied that they do not. The mortgage Ext. P-1 did not provide for payment of any surplus profits or anything by way of rent or perquisites to the mortgagor. In the nature of things, a mere enjoyment of the property by one who had obtainedthe rights of the mortgagee cannot be regarded as in any manner adverse to the rights of the mortgagor. Neither the transfer of patta nor payment of property tax, nor payment of the land acquisition amount, seem to us to place the case any stronger against the mortgagor, these being wholly inadequate to constitute the necessary acts of adverse possession. Patta, ss is well-known, is not evidence of title; and as far as the receipt of the land acquisition amount was concerned the provisions of the Act contain sufficient indication that the mortgagee, as a person interested in the property acquired, can well be a party to the land acquisition proceedings, and is entitled to claim the mortgage money from the land acquisition amount. The owner is not entitled to personal notice of the proceedings. It is enough if notice is given by publication in the Gazette and in the places ordained by the Statute, And Section 72(2) of the Transfer of Property Act provides that where the mortgaged property or any part thereof is acquired the mortgagee may pay himself out of the compensation amount. We are unable, in the circumstances, to see how the receipt of the amount by the mortgagee can amount to adverse possession against the mortgagor. The conclusion of the learned Judge that there was no adverse possession on the proved facts and circumstances was correct and we- have little hesitation in affirming the same.

4. Counsel for the appellant then contended that the transaction Ext. B-1 (sic) was a tenancy and that he was entitled to plead fixity of tenure under the provisions of the Kerala Land Reforms Act, He placed reliance on the Full Bench decision of this Court in Velayudhan Vive-kanandan v. Ayyappan Sadasivan (1975 Ker L. T 1). (FB) Counsel for the respondents contended that whatever be the position before the trial court, whose judgment was delivered in 1967, the appellant had not bothered to agitate this contention before the lower appellate court and therefore he should not be allowed to raise it before us. Counsel for the appellant rightly rejoined that he had succeeded before the lower appellate court, and that even before that court he had filed petitions claiming benefit of Act I of 1964 which had not been disposed of by that court.

On the verification of the records, we find that this statement made by counsel for the appellant of petitions claiming re-lief under Act 1 of 1964 having been filed and remaining undisposed of, was correct. A Full Bench of this Court in Muhammad v Maya Devi (1971 Ker LT 284) : (AIR 1971 Ker 290 (FB)) has held that the appropriate stage in suits of this nature (where only a preliminary decree of redemption has now been passed) to claim fixity of tenure would be when final decree is passed and the person concerned is sought to be dispossessed from the property. We therefore direct that it would be open to the appellant to urge his claim for fixity of tenure at the stage of the final decree. Subject as above, we dismiss this appeal with no order as to costs.


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