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Kunjamma Cicily Vs. Kasim Beevi Sulaikha Beevi - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 1345 of 1962
Judge
Reported inAIR1969Ker293
ActsLimitation Act, 1908 - Schedule - Article 142; Registration Act, 1908 - Sections 47
AppellantKunjamma Cicily
RespondentKasim Beevi Sulaikha Beevi
Appellant Advocate S. Easwara Iyer and; L. Gopalakrishnan Potti, Advs.
Respondent Advocate N. Krishnaswamy Iyengar and; K.S. Paripoornan, Advs.
DispositionAppeal dismissed
Cases ReferredSubah Lal v. Fateh Mohammed
Excerpt:
property - adverse possession - article 142 of schedule to limitation act, 1908 and section 47 of registration act, 1908 - plaintiff-respondent filed suit for partition and separate possession of her share in plaint schedule property - appellant contended that plaintiff's right to recover possession of her share had become extinguished by adverse possession - in order to establish adverse possession on part of co-heir as against another it is not sufficient to show that one of them is in sole possession and enjoyment of profits of property - ouster of non-possessing co-heir by co-heir in possession who claims his possession to be adverse should be made out - there should be open assertion of hostile title coupled with exclusive possession and enjoyment by one co-heir to knowledge of other.....balakrishna ebadi, j. 1. the 1stdefendant in o. s. 709 of 1959 on the file of the munsiff's court. trivandrum is the appellant before us.2. the plaintiff-respondent brought the aforesaid suit for partition and separate possession of her alleged 1/3 share in the plaint schedule property after redemption of a usufructuary mortgage dated 13-9-1918 evidenced by ext. p-4 on payment of the proportionate mortgage amount to the 1st defendant. the courts below have upheld the plaintiff's right to 5/32 shares in the plaint schedule property and passed a preliminary decree for partition and redemption entitling the plaintiff to recover possession of her aforesaid share on deposit of the proportionate mortgage amount and value of improvements. in this second appeal the only contention raised before.....
Judgment:

Balakrishna Ebadi, J.

1. The 1stdefendant in O. S. 709 of 1959 on the file of the Munsiff's Court. Trivandrum is the appellant before us.

2. The plaintiff-respondent brought the aforesaid suit for partition and separate possession of her alleged 1/3 share in the plaint schedule property after redemption of a usufructuary mortgage dated 13-9-1918 evidenced by Ext. P-4 on payment of the proportionate mortgage amount to the 1st defendant. The courts below have upheld the plaintiff's right to 5/32 shares in the plaint schedule property and passed a preliminary decree for partition and redemption entitling the plaintiff to recover possession of her aforesaid share on deposit of the proportionate mortgage amount and value of improvements. In this second appeal the only contention raised before us on behalf of the appellant is that the plaintiff's right to recover possession of her share of the suit property had become extinguished by adverse possession and limitation and that the suit ought to have been dismissed as barred under Article 144 of the Limitation Act, 1908.

3. The plaint schedule property belonged to one Vappu Kochika who died leaving four sons Vava Kunju, Moideen Kunju, Adima and Sayed Mohammed. Vava Kunju died in 1075 and his widow released her rights in the property in favour of Adima in 1079. Adima died in 1083 leaving the plaintiff and her mother as his heirs. The plaintiff's mother died in 1110. Moideen Kunju died in 1084 leaving two sons Asanaru and Abdul Kader. Vava Kunju and Sayed Mohammed died issueless. It has to be noted that parties are all Muslim governed by the ordinary Muslim Law.

4. The plaint schedule property consists of an extent of 88 cents. On the death of Vappu Kochika the suit property devolved on his four sons and it is common case before us that the four brothers were in joint possession of the same. After the death of Vava Kunju,Moideen Kunju and Adima, the last surviving son Sayed Mohammed executed a usufructuary mortgage over the plaint property to one Neelakantan Ummini for 350 fs. under Ext. P-3 dated 6-12-1911. The document recites that out of the consideration of 350 fs. 300 fs. was taken for discharging a prior debt borrowed for the purpose of meeting the funeral expenses of Moideen Kunju and 35 fs. for meeting the expenses of clearing the jungly growth in the sell-same property. The balance of 15 is was for meeting the expenses of the document. Subsequently, under Ext. P-4 dated 18-9-1918 Sayed Mohammed executed another usufructuary mortgage over the property to Alexander and Theresa for 700 fs. It is seen recited in the document that the mortgage amount had been already advanced by the mortgagees to enable the mortgagor to redeem the prior mortgage evidenced by Ext. P-3, and that redemption of that mortgage had already been effected by Sayed Mohammed with such funds. The plaint property thus came into possession of Alexander and Theresa as mortgagees. They subsequently assigned their mortgage rights to one Solomon under Ext. D-l dated 11-7-1921. The aforesaid Solomon assigned his mortgage rights over the eastern section of the property consisting of 48 cents to one Thresia John D'Cruz under Ext. D-2 dated 17-8-1938 and by a separate transaction of the same date his mortgage rights over the western 40 cents were assigned to one Raman Sankaran.

5. On 19-6-1939 Asanaru and Abdul Kader, sons of Moideen Kunju, describing themselves as the ienmis of the property, obtained a release of the mortgage right over the eastern section of 48 cents from Thresia John D'cruz under Ext. D-3 on payment of 700 rs. bring the mortgage amount and value of improvements due to her. On the same date Asanaru and Abdul Kader executed an otti kuzhikanam deed evidenced by Ext. D-4 in favour of the 1st defendant purporting to mortgage the entire extent of 88 cents for 2100 fs. It is stated in the document that the properties which orisnnal-ly belonged to their grandfather Vappu Kochika had devolved by succession on the executants and that they were fully entitled to deal with the same. The mortgagee, the 1st defendant, was given possession of the eastern section of 48 cents which had been got released under Ext. D-3 of the same date. It is mentioned in the document that the remaining extent of 40 cents on the western side was outstanding with Raman Sankaran on possessory mortgage right and the mortgagors undertook to redeem the prior mortgage and hand over possession of that portion also to the 1st defendant.

6. The mortgage rights of Raman Sankaran had been split up and had become vested in two persons by name Mathew Daniel and Nallathampi. The 1st defendant obtained a release of the rights of Mathew Daniel as per Ext. D-ll dated 23-2-1946. On the same date Nallathampi also released his mortgage rights in favour of the 1st defendant under Ext. D-12. Both Exts. D-ll and D-12 contain recitals to the effect that the 1st defendant had acquired melotti rights over the property from the jenmis as per the mortgage evidenced by Ext. D-4. With these two transactions of release the entire extent of 88 cents came into the possession of the 1st defendant as mortgagee under Ext. D-4. While so, Asanaru acting for himself and as guardian of the minor children of Abdul Kader who was by then dead, executed Ext. D-9 sale deed dated 1-4-1946 to one Gnanamuthu Nadar assigning to him the equity of redemption in respect of the entire 88 cents of the plaint schedule property. The 1st defendant took an assignment of the rights of Gnanamuthu Nadar under Ext. D-10 dated 5-8-1946 and by virtue of this purchase he claims to have become the full and exclusive owner of the plaint schedule property.

7. Although the 1st defendant had unsuccessfully disputed in the courts below the plaintiff's status as an heir of the deceased Vappu Kochika by denying even the factum of her being a daughter of Adima, no such contention has been taken before us. As already indicated, the arguments advanced before us on behalf of the appellant were confined to the question as to whether or not the plaintiff's right to partition and recovery of possession of the plaint property was barred by limitation and adverse possession.

8. It was contended on behalf of the appellant that when Sayed Mohammed granted the possessory mortgages evidenced by Exts. P-3 and P-4 there was a clear ouster of the remaining co-sharers so that after the expiry of twelve years from the date of Ext. P-3 or at least from that of Ext. P-4 the rights of the remaining co-sharers must be regardrd as having become extinguished by adverse possession. While narrating the details of the various transactions the recitals contained in Ext. P-3 as to the purpose for which the borrowing was being effected and the manner in which the consideration was being utilised, have already been adverted to. In neither of the documents Exts. P-3 and P-4 is there any assertion by Sayed Mohammed that the property which was being mortgaged belonged exclusively to him. On the other hand what appearsfrom the recitals in Ext. P-3 is that the mortgage was being executed for a purpose common to all the co-sharers, namely, for meeting the funeral expenses of Moideen Kunju and for clearing the jungly growth on the plaint property. It has to be remembered that at the time of execution of Ext. P-3 Sayed Mohammed was the sole survivor among the four sons of Vappu Kochika and his other co-sharers were only the widows and children of the deceased brothers. The plaintiff was a minor on the date of Ext. P-3. From the circumstances brought out in evidence and from the recitals contained in Ext. P-3 the only possible conclusion is that in executing Ext. P-3 Sayed Mohammed who was in de facto management of the property was acting on behalf of all the co-sharers by raising money to meet a common necessity. Ext. P-4, as already noticed, was executed by Sayed Mohammed for paying off the mortgage evidenced by Kxt. P-3 and therefore stands on the same footing as the prior transaction. It is, therefore, not possible to accept the appellant's contention that by creating the mortgages evidenced by Exts. P-3 and P-4 Sayed Mohammed had asserted an' exclusive title hostile to his co-owners so as to constitute their ouster.

9. It was further argued on behalf of the appellant that, in any event, when Asanaru and Abdul Kader took the release of the eastern section of 48 cents from Thresia John D'cruz under Ext. D-3 dated 19-6-1939 describing themselves as the jenmis of the property and executed the possessory mortgage evidenced by Ext, D-4 in favour of the 1st defendant on the same date asserting that they have full rights to deal with the property as the heirs of Vappu Kochika, there was a clear assertion of hostile title by these two co-sharers and that the possession of the stranger, viz., the 1st defendant pursuant to Ext. D-4 must certainly be regarded as adverse to the remaining co-sharers. The further dealings with the property by the 1st defendant by taking releases from Daniel and Nallathampi under Exts. D-ll and D-12 by virtue of which the 1st defendant obtained possession of the remain-Ing 40 cents are also relied on by the counsel for the 1st defendant as supporting her plea of adverse possession. Finally, it is urged that with the sale of the equity of redemption by Asanaru and the legal representatives of Abdul Kader to Gnanamuthu Nadar under Ext. D-9 wherein the assignors have asserted themselves to be the exclusive owners of the property claiming to be the sole heirs of Moideen Kunju and Sayed Mohammed and the subsequent acquisition by the 1st defendant of the rightsof Gnanamuthu Nadar under Ext. D-10 dated 5-8-1946, the possession of the 1st defendant at least thereafter became necessarily adverse to the other co-sharer, viz., the plaintiff and that the present suit having been brought beyond twelve years from the date of Ext. D-10 was clearly barred under Article 144 of the Limitation Act.

10. In answer to the above contentions learned counsel for the respondent submitted that Exts. P-3 and P-4 were transactions validly entered into by Sayed Mohammed on behalf of all the co-owners and had been accepted as such by them and that as long as the possessory mortgage evidenced by Ext. P-4 subsisted the co-sharers had no right to immediate possession, the property being outstanding with a mortgagee under a valid transaction of a mortgage accepted as binding by all of them. On this basis it was argued that any dealings with the property either by the mortgagees or by strangers during the period when the co-sharers had no immediate right to possession could not affect their rights ih the equity of redemption, particularly when they had no notice or knowledge whatever of the alleged assertions of hostile title. It was further contended by the respondent's counsel that the plaintiff's right as a co-sharer could not be prejudicially affected by any transactions or assertions made by Asanaru and Abdul Kader who were two of the other co-sharers unless all the legal requirements of ouster are fully made out. It is pointed out that Exts. D-3 and D-4 were entered into on the same date at a time when, the property was already outstanding on possessory mortgage and there was nothing whatever to alert the plaintiff and put her on notice regarding any hostile claim to the equity of redemption, either at the time of Exts. D-3 and D-4 or when Exts. D-9 and D-10 are stated to have been executed. Counsel points out that not even formal evidence has been attempted to be given by the 1st defendant to establish that the adverse character of the possession of the property by the 1st defendant or her predecessors had been brought to the knowledge of the plaintiff. Relying on all these facts and circumstances the respondent contends that the plea of limitation is devoid of any merit inasmuch as the suit has been brought well within the period of time available in law for redeeming the possessory mortgage evidenced by Ext. P-4.

11. The legal position is now well1 settled that one co-heir in possession cannot render his possession adverse to, the other co-heir not in possession mere-. ly by any secret hostile animus on hisown part in derogation of the other coheir's title. (See Corea v. Appuhamy, 1912 A.C. 230 and P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314). In order to establish adverse possession on the part of one co-heir as against another it is not sufficient to show that one of them is in sole possession and enjoyment of the profits of the property. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse should be made out. For this there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one co-heir to the knowledge of the other, the burden of making out such ouster being on the person claiming to displace the lawful title of a co-heir by his adverse possession.

12. We have already observed that the conduct of Sayed Mohammed in executing the mortgages evidenced by Exts. P-3 and P-4 cannot be regarded as constituting ouster of the remaining coheirs. If that be so, it has to be taken that the plaint property was outstanding on a valid possessory mortgage on and from the date of Ext. P-4, the equity of redemption in such a mortgage being vested in all the co-sharers. The only further question that then arises is whether by virtue of any of the subsequent transactions relied on by the 1st defendant, viz., those evidenced by Exts. D-3, D-4, D-ll, D-12, D-9 and D-10, the plaintiff's right to redeem the possessory mortgage (Ext. P-4) can be said to have become extinguished by adverse possession.

13. Judicial opinion in this country is divided on the question whether during the subsistence of a usufructuary mortgage there can be in law any adverse possession at all as against the mortgagor who has no right to immediate nossession. In Parthasarathy Naicken v. Lakshmana Naicken (1912) ILR 35 Mad 231 (D.B.) Munro, J. held as follows at p. 237:

'It is in accordance with what I conceive to be the correct principle, viz., that the interest in immoveable property which is affected by adverse possession is the interest and that interest only which the person who was entitled to immediate possession at the time the adverse possession began, had at that time. This principle can be deduced from the language of Article 144 of Schedule II of the Limitation Act of 1877 itself, and the cases already cited supply instances of its application. Under Article 144, limitation begins to run from the time when the possession of the defendant becomes adverse to the plaintiff. This shows that a claim to imrnoveable property will not cause time to runagainst the true owner unless it is accompanied by possession; while the term 'adverse possession' clearly implies that the person against whom adverse possession is exercised is a person who is entitled to demand possession at the moment the adverse possession begins'. In Venkataramanachari v. Thirunarayana-chari, (1914) 2 Mad LW 212, a Division Bench of the Madras High Court consisting of Sadasiva Iyer and Hannay, JJ, held that the interest of a simple mortgagee in the mortgaged property could not be prescribed against in law and that such right would not be lost even if there had been open assertion by the person in possession denying the rights of the mortgagee to the latter's knowledge and such possession had continued for the requisite period of twelve years. Sadasiva lyer, J. observed thus at p. 217: 'Mr. Narasimha Rao finally argued that Narasammal's son's guardian having set up in 1886 in the suit O. S. No. 242 of 1886 that the mortgage executed by his mother did not affect his interest in the mortgaged property, there was a sort of adverse possession of the mortgagee's interest under Exhibit A, held by Narasammal's son from that date and that the mortgagee thereby lost his rights in the mortgaged property by adverse possession for 12 years in Narasammal's son and his alienees. I have found it somewhat difficult to understand this ingenious argument. The mortgagee had only an incorporeal right and he was not entitled to possession of the mortgaged property. How the mortgagor's denial of the mortgagee's right could make the mortgagor get possession of the incorporeal right of the mortgagee, or how such incorporeal right which did not carry with it the right to physical possession of the mortgaged property and did not carry with it in favour of the mortgagee any right to get the rents or profits of the mortgaged property could be possessed adversely by a mere denial of such incorporeal right, I am unable to see. (See also the judgment in S. A. Nos. 1403 and 1404 of 1912 in which a similar contention as to adverse possession of an incorporeal right was negatived by us and which judgment was pronounced today).'

The correctness of the above two rulings was affirmed by a Full Bench of the Madras High Court in Vyapuri v. Sona-mma Boi Ammani, ILR 39 Mad 811: (AIR 1916 Mad 990 (2)). Dealing with the question whether there can be a valid claim of acquisition of title to an incorporeal right by adverse possession Sadasiva Ayyar, J. has observed therein as follows at p. 822 (of ILR) : (at p. 996 of AIR).

'If some tangible benefit (periodical or otherwise such as the right to receiverents and profits though not to get physical possession) is derivable by the owner of an incorporeal right and if he is prevented by the trespasser from getting that benefit and if the trespasser obtains that benefit himself, a dispossession of such incorporeal right is conceivable. See (1914) 2 Mad LW 212 at p. 217, but not in other cases.'

That possession cannot be adverse to any one who has no immediate right to possession and that therefore where a property has been mortgaged with possession and the mortgagor is not entitled to any share in the actual enjoyment of the property by way of receipt of rents and profits etc. the possession of a person who dispossesses the mortgagee and enters into possession of the mortgaged property will not be adverse to the mortgagor, has been held in the following cases also. Salig Ram v. Gouri Shan-kar Tandan, AIR 1935 All 542, Amar Nath v. Duni, AIR 1935 Lab 315. Bipa-nand Sawaso v. Thuroo Mahto, AIR 1923 Pat 592, Dubraj Mahto v. Lalji Sahai, AIR 1929 Pat 636, Tarabai Ramrao Patankar v. Dattaram Govindbhai Gujar, AIR 1925 Bom 465, Narasingh Siiigh v. Raghuvendra Singh, AIR 1957 All 82, and Ganda Singh v. Ram Narain Singh, AIR 1959 Punj 147 (FB). The authorities bearing on the point have been discussed in detail in the last mentioned Full Bench decision of the Punjab High Court, where it has been held that the title to the equity of redemption cannot be acquired by adverse possession when the land is in the actual possession of the mortgagee.

14. In certain other cases, however, the view taken is that the possession of a third party who dispossesses the mortgagee and enters into possession of the mortgaged property can be adverse to the mortgagor, provided there is proof that there was denial of the mortgagor's title to his knowledge, the burden of proving such open repudiation being heavily on the person pleading acquisition of title by adverse possession. In Periya Aiya Ambalam v. Shunmuga-sundaram, ILR 38 Mad 903: (AIR 1914 Mad 334 (FB)) Sankaran Nair, J. took the view that there can be acquisition of title by adverse possession in respect of an equity of redemption, but pointed out that for that purpose the trespasser who has ousted the mortgagee, has to prove not merely that possession was held by him on an exclusive title but also that it was acquired and retained with an assertion of an adverse title to the knowledge of the mortgagor. The learned Judge observed as follows at p. 914 (of ILR) : (at p. 341 of AIK):

'When the owner of the property in possession is dispossessed, the trespasser'spossession is clearly adverse to him from its inception, as, to his knowledge, the property is held against his will, and he must assert his right within twelve years of his dispossession. But if his mortgagee, who has been placed in possession by him, is followed by another person there is no presumption in law that such possession was taken without any right. He may be an assignee of the mortgagee, or one who purchases the mortgage as a mortgage; or he may be an adverse claimant to the mortgage right; where more than one inference may be drawn, that inference should not be drawn which imputes a wrongful act to a person. The defendant has therefore to show that he took possession of his property as absolute property in contradistinction to mortgage property. Nor is this sufficient; as his possession may be consistent with the mortgagor's title, the mortgagor must obviously have notice that he is holding it as absolute property in denial of any right in him. Otherwise no laches can be imputed to him and the possession cannot be said to be adverse.'

15. The above decision of the Madras Full Bench was followed by a Division Bench of the Bombay High Court in Digamber Shridhar Dhekne v. Ram-ratan Raghunath, AIR 1947 Bom 471. The earlier decisions of the Bombay High Court on this matter had taken divergent views. In Bhaurao v. Rakh-min, (1898) ILR 23 Bom 137 (FB) the Bombay High Court adopted with approval the following definition of adverse possession given by Markby, J. in Bejoy Chander Banernjee v. Kally Prosonno Mookerjee, (1878) ILR 4 Cal 327 at p. 329:

'By adverse possession I understand to be meant possession by a person holding the land, on his own behalf, of some person other than the true owner, the true owner having a right to immediate possession.'

and the learned Judges proceeded to hold that if the true owner has no right to immediate possession no adverse possession can begin against him. In Gita-bai v. Krishna Malhar.ii ILR 45 Bom 661 :(AIR 1921 Bom 295), Macleod, C, J. took a similar view and observed thus at p. 665 (of ILR) : (at p. 296 of AIR):

'It appears to me the simple question is, could the mortgagor in this case have filed a suit against the defendant for ejectment before he redeemed the mortgage. For it seems that if the mortgagor could not file the suit until he redeemed, it would be absurd to say that time had begun to run against him until he did redeem, and that seems to have been the opinion of the Allahabad High Court in Muhammad Husain v. Mul Chand,(1905) ILR 27 All 395.'

This principle was reiterated by Macleod, C. J. in ILR 49 Bom 539: AIR 1925 Bom 465 where the learned Judge stated the legal position to be:

'In the case of a possessory mortgage where possession has been delivered to the mortgagee, a trespasser obtaining possession may hold adversely to the mortgagee but not to the mortgagor.'

InTara Bai v. Venkatrao, (1902) ILR 27 Bom 43, Batty, J. had, however, taken the view that in case there is proof of unequivocal ouster of the mortgagor by a person who has dispossessed the mortgagee, adverse possession will operate as against the mortgagor from the time of such ouster. These conflicting decisions were fully discussed by the learned Judges who decided AIR 1947 Bom 471, and they preferred to follow the decision of Batty, J. reported in (1902) ILR 27 Bom 43 supported as it was by the dictum laid down by the Full Bench of the Madras High Court in ILR 38 Mad 903l (AIR 1914 Mad 334 (FB)).

16. In Sarjug Devi v. Dulhin Kishorl Kuer, AIR 1960 Pat 474, Kanhaiya Singh, J. sitting singly has followed the dicta laid down in ILR 38 Mad 903; (AIR 1914 Mad 334 (FB)) and AIR 1947 Bom 471 and held that

'where a trespasser dispossesses a mortgagee in possession and continues in possession asserting a title adverse to the mortgagor also, such dispossession will be adverse to the mortgagor from the time the mortgagor has knowledge of the assertion, though he may not then be entitled, according to the terms of the mortgage, to recover possession from the mortgagee'.

17. It is unnecessary for us for the purpose of the present case to express any final opinion as to which of the two divergent views above-mentioned should be accepted by this court as correct, because even if it is to be assumed that the view of law expressed in ILR 38 Mad 903 :(AIR 1914 Mad 334 (FB)) and followed in AIR 1947 Bom 471, is the correct one, the plea of adverse possession put forward by the defendant in this case has to fail on the ground that there is absolutely no evidence whatever that the mortgagor plaintiff had any notice of the adverse character of the possession of the 1st defendant, much less anything to show that there was any assertion of hostile title to the equity of redemption by the 1st defendant or her predecessors to the knowledge of the plaintiff. It may, however be mentioned that the view expressed by Sankaran Nair, J. in ILR 38 Mad 903 :(AIR 1914 Mad 334 (FB)), that there can be adverse possession in respect of the incorporeal right ofredemption of the mortgagor, has been expressly dissented from in the judgments of Sadasiva Ayyar, J. and Srini-vasa Ayyangar, J. in the subsequent Full Bench decision reported in ILR 39 Mad 811 :(AIR 1916 Mad 980 (2) (FB)), and this later Full Bench ruling has been followed by a Full Bench of our High Court in Ouseph Chacko v. Krishna Pillai Govinda Pillai, 1957 Ker LT 742 at p. 750 :(AIR 1958 Ker 22 at p. 27 (FB)), as authority for holding that the possession of a trespasser over property which is subject to a simple mortgage cannot be adverse to the simple mortgagee, inasmuch as the latter has no right to possession of the property.

18. Reverting to the facts of this case, we have already held that Ext, P-4 mortgage must be taken to have been executed by Sayed Mohammed on behalf of all the co-heirs. Therefore, on and from the date of that transaction, namely 13-9-1918, the property was outstanding in the possession of a mortgagee who alone had the right to immediate possession. The original mortgagees assigned their rights to Solomon under Ext. D-l and Solomon, in turn, split up his mortgage rights and executed separate assignment deeds in favour of Thresia D'eruz and Raman Sankaran. The rights of Raman Sankaran were again the subject-matter of successive assignments as evidenced by Exts. D-5, D-6, p-7 and D-8. On account of these various transactions the possession of the mortgaged property had repeatedly changed hands from time to time. Although under Ext. D-3 Asa-naru and Abdul Kader had purported to take a release of the mortgage from Thresia D'cruz describing themselves as jenmis, they had almost simultaneously mortgaged the property to the 1st defendant under Ext. D-4 executed on the same date. There was no interval of time between these two transactions when the property could have been in the actual possession of Asanaru and Abdul Kader so as to put the plaintiff on enquiry as to how the property came back to the possession of their co-owners and all that had happened was that in respect of the eastern section of 48 cents of the plaint property possession passed from Thresia D'cruz to the 1st defendant. In the context of these successive transfers of the mortgagee's interest already referred to it would have been perfectly legitimate for the plaintiff to assume that the 1st defendant had come Into possession only as a transferee of the mortgage right. As observed by Sankaran Nair, J, in ILR 38 Mad 903 at p. 914 :(AIR 1914 Mad 334 at P. 341 FB), If the mortgagee who has been placed in possession by the lawful owner of the property is followed by another person there is no presumption in law that suchother person has taken possession without any right. He may be an assignee of the mortgagee or he may be an adverse claimant to the mortgage right, 'Where more than one inference may be drawn, that inference should not be drawn which imputes a wrongful act to a person.' The 1st defendant has, therefore, to show that he was holding the property as her absolute property in denial of the plaintiff's right, such denial having been brought to the knowledge of the plaintiff.

19. It is no doubt true thai Exts. D-3 and D-4 contain recitals to the effect that Asanaru and Abdul Kader are thei jenmis of the property and that they have full rights to deal with the same. The plaintiff was not a party to those documents nor has our attention been, drawn to any circumstances from which it may be legitimately inferred that the plaintiff had knowledge of these transactions and the hostile assertions or was at least under a duty to enquire about them. The following observations of Niamatullah, J. in Subah Lal v. Fateh Mohammed, AIR 1932 All 393 at p. 397 may be usefully extracted in this con-text:

'It was contended on behalf of the appellant that Ewaz All and others might have been co-sharers of the plaintiffs; but their mortgagee (the appellant) was not. Assuming this is so, the appellant's possession has to be pronounced to be adverse before limitation for the plaintiffs' suit is reckoned from the date of the mortgage. To be adverse, it must be such as to be in open denial of the plaintiffs' right. This principle is not peculiar to co-sharers, but is applicable to all persons claiming adverse possession. It is true possession is prima facie adverse, but if the apparent circumstances suggest a lawful title in the possessor, his denial of the right of the mortgagor's co-sharer, implied in a transaction, not coming to his knowledge cannot set limitation running against him, registration cannot in such a case give rise to the presumption of notice nor can knowledge of the transaction be imputed to the rightful claimant where there is nothing to put him to inquiry.'

We are in respectful agreement with the view expressed by the learned Judge that merely by the reason of the registration of a document knowledge of the transaction or of the recitals therein cannot be imputed to a third party so as to set limitation running against him.

20. In regard to the western section of 40 cents of the plaint property the 1st defendant obtained possession by virtue of the transactions of release evidenced by Exts. D-U and D-12. The observa-tions that we have made with respect to Exts. D-3 and D-4 apply with equal force to Exts. D-ll and D-12 as well.

21. The transactions of sale evidenced by Exts. D-9 and D-10 did not bring about any apparent change in the possession of the property as the property continued as before in the possession of the 1st defendant.

22. Even if we are to apply the principles laid down in ILR 38 Mad 903; (AIR 1914 Mad 334 (FB)) and AIR 1947 Bom 471, the 1st defendant cannot succeed unless she establishes that she had openly repudiated the plaintiff's title to the equity of redemption to the latter's knowledge. We have pointed out that merely from the presence of certain recitals in Exts. D-3, D-4 and D-9 to D-12 it is not possible, in the absence of other evidence, to impute to the plaintiff knowledge of those transactions or of the hostile assertions. The burden of proving ouster by denial of the plaintiff's title to his knowledge is heavily on the 1st defendant. But not even formal evidence has been attempted to be given by her in this regard. The only witness examined on the side of the 1st defendant is D, W. 1, her son-in-law. He was born only in 1922 and his marriage to the 1st defendant's daughter took place only in 1955. He does not claim to have any personal knowledge of any of the relevant transactions referred to above or of their attending circumstances. In this state of the evidence we have no hesitation to hold that the defendant has failed to discharge the burden of proving that there had been an open repudiation by her of the plaintiff's right in the equity of redemption so as to put the plaintiff on notice regarding the adverse character of her possession. The Courts below were therefore perfectly right in rejecting the appellant's plea that the plaintiff's right to sue for redemption and recovery of possession is barred by adverse possession.

23. In the result, the decree and5udgment under appeal are confirmedand this second appeal is dismissed withcosts.


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