1. This is an appeal by the plaintiff under Section 21(1) of the Travancore-Cochin High Court Act, 1125 (Act 5 of 1125) against the judgment and decree passed by T.K. Joseph J., on 24-3-1954 in S. A. No. 227 of 1125. Affirming the concurrent decisions of the Principal District Munsif of Nagercoil in O. S. No. 387 of 1122 and of the Second judge of Nagercoil in appeal therefrom (A. S. No. 92 of 1124) the learned Single Judge dismissed the said second appeal, but at the same time declared that the case was a fit one for a further appeal to a Division Court of two Judges. The plaintiff has accordingly brought the present appeal. The facts giving rise to the suit (O. S. 387of 1122) out of which the appeal arises are as follows:
2. The plaint property belonged to the tar-wad of the plaintiff and defendants 2 to 5. In 1069 the then Karnavan of the tarwad granted an Otti with respect thereto to one Neeli for a consideration of Fs, 700. In 1075 Neeli assigned her Otti right to one Valli and while the latter was thus in possession and had effected various improvements such as buildings etc., the Karnavan granted a fresh Otti to her for a consideration of Fs. 1000, out of which Fs. 700 represented the consideration for the earlier transaction.
This was in 1089, but in 1092 defendant 2 to the present suit, who is none other than the present plaintiff's mother, and defendant 3, her daughter, brought a suit (O. S. 393 of 1092, Nagercoil District Munsiff's Court) to set aside the latter Otti deed on the ground that it was not supported by consideration or tarwad necessity. In that suit the plaintiffs thereto offered to redeem the Otti of 1069 and the court granted them a decree virtually in terms of their plaint. That is to say, the Otti deed of 1089 was set aside and the plaintiffs were allowed to redeem the earlier Otti transaction on behalf of the tarwad on payment of the consideration thereof namely Fs. 700 and value of improvements amounting to Fs. 7328-2 Chakkarms and cash.
The decree bears the date 20th Kumbham, 1094 (3-3-1919). Ext. III is a copy of the decree. The decree-holders however did not take out execution in time and the decree therefore got barred by limitation, Well-nigh 28 years after the date of the decree (O. S. 393 of 1092), on 18-5-1122, the present appellant who as mentioned earlier, is the son of plaintiff I in the former suit, brought this suit for redemption of the Otti of 1089.
In the meanwhile, in 1118 or thereabouts, defendant 1 had purchased the rights which Valli had in the property. Defendant 1 contested the suit. The Principal District Munsiff, Nagercoil before whom the suit came up for trial dismissed it on the ground that it was unsustainable inasmuch as the Otti deed of 1089 had been set aside in the prior suit and the suit was therefore one to redeem a non-existing Otti. This decision was affirmed in appeal by the learned Second Judge of Nagercoil and by T.K. Joseph J., in the second appeal brought against the Second Judge's decision.
3. In this further appeal brought on the strength of the certificate granted by Joseph J., Mr. M. Madhavan Nair appearing for the plaintiff-appellant contended that as the decree annulling the Otti of 1089 had got barred by limitation the mortgagee or her assignee, as the case may be, had by continued possession of the property for more than 12 years obtained a title by prescription to the said Otti right and that it was therefore open to his client to seek redemption thereof on payment of the Otti money and value of improvements, if any.
The contention was that by allowing the former decree to get barred the tarwad had only lost the benefits conferred by it, that is, to obtain possession of the property by payment of the consideration for the earlier Otti deed and value of improvements and that the loss of that right would not preclude the tarwad from seeking redemption of the Otti of 1089 even though that stood annulled by a decree. This contention is supported by the decisions in Numku Pillai v. Shudalaimuthu Subrahmonian, 15 Trav. LR 172 and Kochappi Amma v. Pathummal, 1948 Trav. LR 1008.
The principle of those decisions is a well-recognised one and it is, that a party entering upon possession of a property under an alienation which does not purport to eftect an absolute transfer in the property, would in the event of that transfer turning out to be invalid, obtain by continued possession a prescriptive title only to that limited right. See Purusottam Das v. S.M. Desouza, AIR 1950 Orissa 213; Palania Pillai v. Amjath Ibrahim, AIR 1942 Mad 622 (FB); and Ghassu v. Babu Ram, AIR 1944 All 25 (FB). However, as pointed out by Mr. P. Govindan Nair, the learned Counsel for respondent 1 (defendant 1), the principle of those decisions is clearly inapplicable to the present case.
4. The view that the right which a person entering upon a property under a limited right (say, as a mortgagee or a lessee) which turns out to be invalid would by continued possession obtain a prescriptive title to that limited right alone is founded on the principle that the entry though wrongful from its inception was only with an animus to possess or hold the property as a limited owner. When the entry into possession is not wrongful no question of obtaining a title by prescription could or would possibly arise. Here, when the prior decree in O. S. 393 of 1092 annulled the Otti of 1089 possession of the mortgagee would throughout be deemed to have been under the lawful title derived from the earlier Otti of 1069. Indeed that is what the decree in O. S. 393 of 1092 itself purports to recognise. It is well settled that possession is never considered adverse if it can be referred to a lawful title -- See Charles Edward Victor Seneviratne Cores v. Appuhamy, AIR 1914 PC 243 and Hardit Singh v. Gurumukh Singh, AIR 1918 PC 1.
5. Confronted with the above difficulty and realising that the two decisions of the Travancore High Court sought to be depended upon, cannot, in the circumstances of the case be of assistance to his client to obtain a decree for redemption of the Otti of 1089, Mr. M. Madhavan Nair sought leave of this Court to amend the plaint so as to convert the suit into one based on the earlier Otti of 1069 and he filed a petition, C. M. P. No. 2363 of 1958, in that behalf.
The affidavit in support of the application for amendment sets out that his client was misled by the two said decisions and that since the earlier Otti of 1069 had been kept alive by subsequent acknowledgments, one in 1076 another in 1089 and a third in 1092 defendant 1 would not in any way be prejudiced by the amendment being allowed even at this late stage. Mr. Govindan Nair strenuously opposed the application for amendment and filed C. M. P. 2903 of 1958 setting out the grounds of his objection.
Though the affidavit filed by the appellant in support of the application for amendment states that he was misled by the advice his advocate in the lower courts gave on the strength of the two decisions referred to, we find that in the three judgments of this case that are before us, there is no reference to these decisions at all. Further, the learned Single Judge's decision would show that it was not disputed before him that treating the present suit as one to redeem the Otti of 1069, it was barred by limitation when it was brought. Mr. Govindan Nair contended that there were no acknowledgments at all.
In the circumstances it is not possible to permit the amendment to be made without an enquiry as to whether the acknowledgments referred to in the application for amendment are true andvalid. Mr. Govindan Nair has also invited our attention to the decision in Gauri Shankar v. Lala, AIR 1938 Oudh 16, where an amendment was refused by the Chief Court of Oudh on the ground that a fresh suit would not be time-barred on the plaintiff's allegations. In the circumstances we cannot allow the amendment to be made now, very nearly 12 years after the institution of the suit and we are passing orders on C. M. P. 2363 of 1958 rejecting it,
6. The view taken in the three judgments of this case that what was sought to be redeemed here is a non-existing Otti has in the circumstances to be upheld. Before concluding we would however mention that in opposing the application for the amendment Mr. Govindan Nair agreed that a record may be made here that if and when a fresh suit is brought to redeem the Otti of 1069, his client (defendant 1) would not contend that that suit was not maintainable by reason of the plaintiff's failure to seek redemption of the Otti of 1069 in the present suit. It may well be his opposition to the amendment on the strength of the Oudh decision cited above might itself preclude his client from opposing the fresh suit, if brought on the ground that redemption of the Otti of 1069 ought to have been claimed in the present suit. However as Mr. Govindan Nair agreed that a record of what he submitted may be made in our judgment and even expressed his willingness to give that in writing, we have thought it proper to make this record of his submission,
7. The appeal fails in the result and we dismiss it with costs.