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Konnan Sanku of Moothedathu and anr. Vs. Kalyani Parvathi Amma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberS.A. No. 1079 of 1958
Judge
Reported inAIR1963Ker249
ActsLimitation Act, 1908 - Schedule - Article 144; Transfer of Property Act, 1882 - Sections 91
AppellantKonnan Sanku of Moothedathu and anr.
RespondentKalyani Parvathi Amma and ors.
Appellant Advocate George Vadakkel, Adv.
Respondent Advocate P. Sivasankara Menon, Adv. Represents; P.K. Kesavan Nair, Adv.
DispositionAppeal dismissed
Cases ReferredMatheis v. Kunhikkayu Varasyar
Excerpt:
- .....from thedate of ext. a expired; their right was not to redeem but to recover possession in spite of ext. a, at least to the extent of their shares. after that period, in the above view, they have lost their right to the equity of redemption by reason of adverse possession. the argument founded on section 91 of the transfer of property act is unsustainable. 5. the suit has been rightly dismissed by the lower courts. the second appeal fails and is dismissed with costs.
Judgment:

S. Velu Pillai, J.

1. The suit properties were demised on lease by the Jenmi to one Konnan (senior) who died leaving him surviving, four sons, Konnan (junior) who was the deceased husband of the 3rd plaintiff and the father of the plaintiffs and 2, Ravunny who was the father of defendants 6 and 7, Ittaman the 4th defendant, and Velayu-dhan the 5th defendant. Ravunny, and defendants 4 and 5, mortgaged the leasehold by Ext. A in the year 1108 to the first defendant. The jenmi gave a subsequent lease of the properties to the second defendant, the wife of the first defendant, Ext. B in the year 1118. She sued the first defendant, Ravunny, and defendants 4 and 5, in O. S. No. 350 of 1118 for recovery of possession. Pursuant to the decree therein the first defendant surrendered the properties to her. The plaintiffs have now sued to redeem Ext. A. The two Courts have dismissed the suit on the ground that it is barred by limitation. In this second appeal by plaintiffs 1 and 2, the sole question for decision is whether the suit is barred by limitation or not.

2. It was not contested, that the possession of the second defendant from the date of the surrender of possession to her had been adverse to the plaintiffs. But it was contended that the sons of Konnan (senior) being co-owners of the leasehold.the possession of the first' defendant under Ext. A was not adverse to Konnan (junior) the predeces sor-in-interest of the plaintiff is, and that in anyevent, the first defendant could prescribe only for a mortgagee's estate and the suit for redemption-ought to be decreed. The preponderance of authority is in favour of the view, that the execution of a mortgage of the whole property under which-the mortgagee enters possession operates as an ouster of the other co-owners and to their knowledge. The cases on the subject have been discussed by a Full Bench of the Madras High Court in Palania pilial v. Amjath Ibrahim, AIR 1942 Mad 622, which held that

'Where some co-owners usufructuarily mortgage specific items, of property and the mortgagee enters- into possession ............... a suit to recoverthe share therein by the other co-owners is barred by Article 144 of the Limitation Act at the end of 12 years of such possession.'

In Joseph v. John, 1959 Ker LJ 725 : (AIR 1960 Ker 27), sitting as a single Judge, I have applied the same rule, where a stranger purchaser in exetion of a decree against one co-owner was in possession of the whole property for more than 12 years. In my opinion, this applies to the posses-sion of a mortgagee of the whole property from a-co-owner.

3. The second argument appeared plausible, that the mortgagee could prescribe only for a mortgagee's estate. In fact this was assumed without contest in Palania Pillai's case, AIR 1942 Mad 622 (FB). But the point arose for decision before a Full Bench of the former Cochin High Court in Matheis v. Kunhikkayu Varasyar, 39 Cochin 97 In that case as in the present though there was no express denial of the rights of the other co-owners, the mortgage deed was executed as if the mortgagors were the sole co-owners. In this sense, there was an assertion of a title hostile to the others. The principle was stated thus:-

''The possession of the mortgagee will not during the continuance of the mortgage be adverse to the mortgagor but possession which is not adverse to one person may in law be adverse to another. The mortgagee never recognised Theresia-as a co-owner. He accepted the mortgage from Souryar and Mathoo on the footing that full title to the property vested in them. As against There-sia, the possession of the mortgagee was therefore but the continuation of the possession of their mortgagors themselves after their assertion to her knowledge of a title hostile to her'.

Applying this, it must follow that the possession of the first defendant as against the plaintiffs cannot be considered to be that of a mortgagee under them. Ravunny and defendants 4 and 5 by letting a stranger into possession, had asserted a hostile title to their knowledge. This amounted to ouster. It did not matter whether the co-owners who ousted the others gave a mortgage or were in possession through a lessee. In either case the person in possession is not the mortgagee or the lessee of the co-owners who have been ousted.

4. The plaintiffs cannot, as contended, sue for redemption as persons interested in the equity of redemption. Before the period of 12 years from thedate of Ext. A expired; their right was not to redeem but to recover possession in spite of Ext. A, at least to the extent of their shares. After that period, in the above view, they have lost their right to the equity of redemption by reason of adverse possession. The argument founded on Section 91 of the Transfer of Property Act is unsustainable.

5. The suit has been rightly dismissed by the lower Courts. The second appeal fails and is dismissed with costs.


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