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Janaki Amma Vs. Venkitasubba Iyer - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberA.S. No. 43 of 1955 (T)
Judge
Reported inAIR1958Ker311
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rules 10 - Order 34, Rule 1; Transfer of Property Act, 1882 - Sections 68
AppellantJanaki Amma
RespondentVenkitasubba Iyer
Appellant Advocate T.K. Narayana Pillai, Adv.
Respondent Advocate N. Sankara Iyer, Adv.
Excerpt:
.....19 and her predecessors had been in possession of the property over 60 years and whatever title defendants 1 to 3 and subramonia pillai and ponnuswami pillai had in plaint schedule item 1 was lost by their adverse possession and subramonia pillai and defendants 1 and 2 had no subsisting title on the date of the mortgages and so the mortgages were not valid and binding on plaint schedule item 1 and could create no charge thereon, that by the judgment in the land acquisition case and by their failure to institute a suit for setting aside ext. defendant 3 in this suit) swears that his father leased the buildings to one ama parvathi in 1079, that parvathi enjoyed the buildings till 1089, that from 1089 to 1092 parvathi's daughter enjoyed it and that in 1092 he took ext. like the..........19 and her predecessors had been in possession of the property over 60 years and whatever title defendants 1 to 3 and subramonia pillai and ponnuswami pillai had in plaint schedule item 1 was lost by their adverse possession and subramonia pillai and defendants 1 and 2 had no subsisting title on the date of the mortgages and so the mortgages were not valid and binding on plaint schedule item 1 and could create no charge thereon, that by the judgment in the land acquisition case and by their failure to institute a suit for setting aside ext. g order, within one year of the date of that order defendants 1 and 2 and the plaintiff arc precluded from denying defendant 19's right to and possession of plaint schedule item 1 and from contending that subramonia pillai and defendants 1.....
Judgment:

Kumara Pillai, J.

1. This appeal arises out of a suit for money due under four simple mortgages or hypothecation bonds. There were ten items of properties in the plaint schedule, and the suit has been decreed as regards all of them. The appeal relates only to plaint schedule item 1, and the question raised by the appellant, defendant 19, who claims the said item by title paramount, is whether it is liable at all for the plaint claim. Defendants 4 to 27 were impleaded in the suit on the allegation that they were living in the plaint properties and it was therefore necessary to have them on the party array in order to enable the plaintiff to get an effective decree.

2. According to the plaint allegations, plaint schedule items 1 to 10 were the ancestral properties of two brothers, Subramonia Pillai and Ponnuswami Pillai, both of whom are now dead. Ponnuswami Pillai was the elder of the two brothers and defendant 3 is his son. Defendants 1 and 2 are the widow and son of Subramonia Pillai. Two of the plaint mortgages, Exts. D and A, were executed by Subramonia Pillai, Ext. D on 10-4-1109 and Ext. A on 23-4-1110, and the remaining two, Exts. B and C, were executed after, his death by defendants 1 and 2, Ext. B on 2-11-1113 and Ext. C on 16-8-1118.

After the execution of Ext. A Subramonia Pillai filed a suit, O. S. 81 of 1110 of the Trivandrum District Court, for partition and recovery of possession of his one-half share in plaint schedule items 1 to 10. While that suit was pending trial Subra-monia Pillai died, and detendants 1 and 2 were im-pleaded therein as his legal representatives. By the decree Ext. E dated 21-6-1116, O. S. 81 of 1110 was dismissed so far as plaint schedule items 2 to 10 were concerned and one-half of plaint schedule item I was given to defendants 1 and 2 (additional plaintiffs therein) on account of Subramonia Pillai's share in the ancestral properties.

It was while an appeal against Ext. E decree filed by defendants 1 and 2 was pending in the High Court that the plaintiff brought the present suit, & he had mentioned in the plaint that the appeal of defendants 1 and 2 was pending in the High Court. (3) Defendant 19 disputed the plaintiff's right to get a decree charged on plaint schedule item 1. She contended that the said item belonged to her and that defendants 1, 2 and 3 and Subramonia Pillai and Ponnuswami Pillai had no right to it, and so the mortgages executed by Subramonia Pillai and defendants, 1 and 2 were not binding and could not create any charge on it. According to her, her grand-mother Ama Parvathi, mother Parvati Lakshmi and herself had successively been in possession of the property for over 60 years and even if Subramonia Pillai and others had any right to it their rights have been extinguished by the long adverse possession of herself and her predecessors-in-interest.

She also contended that the decree in O. S. 81 of 1110 was a collusive one and that it was not binding on her as she was not a party thereto. In the plaint defendant 19 was described as a Vellala lady. She denied she was a Vellala and contended that she was a Nair. In a suit, O. S. 1498 of 1093 of the Tri-vandrum District Munsiff's Court, filed by defendant 8's sister against defendant 3 and one Muniswami Mudaliar for recovery of possession of Ponnuswami Pillai's share in plaint schedule item 1 on the allegation that he had sold his share to defendant 3's sister and that Muniswami Mudaliar was in possession of the property under a lease from Ponnuswami Pillai, it had been found that Ponnuswami Pillai had leased the property to Muniswami Pillai and his wife Par-vathi Lakshmi.

Ext. F is the copy of the judgment in that suit. The suit itself was dismissed by Ext. F on the find-ins that the sale deed executed by Ponnuswami Pillai in favour of defendant 3's sister who was his daughter, was a sham document brought into existence for defeating his creditors and had not taken effect; and although in view of this finding and the dismissal of the suit it was unnecessary to consider in that suit the case that Muniswami Mudaliar was in possession of plaint item 1 under a lease, that question too was considered in that suit and a finding that he was in possession under a lease was recorded.

The case of the plaintiff in the present suit was that defendant 19 was in possession of plaint item 1 having obtained possession of it from the above lessees after their death. Defendant 19 admitted she was Parvathi Lakshmi's daughter. But she denied that Muniswami Mudaliar was her lather or even the husband of her mother. According to her, it was to bolster up the case that she was Muniswami Muda-liar*s daughter that the plaintiff had falsely described her in the plaint as a Vellala, and all the proceedings in O. S. 1498 of 1093 were fraudulent and not binding on her.

About 1 cent and 60 sq. links of land from plaint schedule item 1 was acquired by the State in 1118 or 1119 and the compensation amount for the same was awarded by the District Court to defendant 19. Likewise, an obstruction petition filed by defendant 19 when as decree-holders in O. S. 81 of 1110 defendants 1 and 2 applied to get delivery o the land allotted to them under Ext. E, was allowed by the District Court on the findings that she was in possession of item 1 in her own right.

The judgment in the Land Acquisition Case, Ext. 1, and the order on the obstruction petition, Ext. G or III, were also relied upon by defendant 19 in support of her contention that her grand-mother, mother and herself had been in possession of plaint schedule item 1 for over 60 years and Subramonia Pillai and his brother and defendants 1 to 3 had no subsisting title to it and it belonged absolutely toiler. On the other hand plaintiff relied upon the finding in Ext. F about the lease and contended that defendant 19's grand-mother and mother as well as her father were in possession as lessees of Ponnuswami Pillai who was the head of the joint family consisting of himself, Subramonia Pillai and defendants 1 to 3, that defendant 19 had only obtained possession of the property from the above lessees, and that her possession being therefore only permissive possession Subramonia Pillai and defendants 1 and 2 had a subsisting title on the date of the mortgages and there was no scope for a plea of adverse possession.

4. The findings of the lower court in regard to defendant 19's contentions are:

(i) that she is the daughter of Muniswami Mudaliar and Parvathi Lakshmi;

(ii) that Ponnuswami Pillai had leased the building in plaint schedule item 1 to defendant 19's grand-mother Ama Parvathi in 1079 and she was in possession of it till 1089. After Ama Parvathi defendant 19's mother Parvathi Lakshmi was in possession of the property from 1089 to 1092 and following this lease Muniswami Mudaliar and his wife Parvathi Lekshmi took it under a written lease from Ponnuswami Pillai in 1092 and defendant 19 is in possession under the said lease;

(iii) that defendant 19's possession being thus permissive possession she has not obtained any right to plaint schedule item 1 by adverse possession and defendants 1 and 2 and Subramonia Pillai had a subsisting title to one-half of plaint schedule item 1 and the mortgages executed by them were valid and binding on their !5alf share;

(iv) that the judgment, Ext. 1, in the Land Acquisition case, and the order, Ext. G, on the obstruction petition, will not affect the rights of defendants 1 and 2 and the plaintiff; and

(v) that the decrees in O. S. 81 of 1110 and O. S. 1468 of 1093 will not bind defendant 19 as she was not a party to those suits but the judgment in O. S. 1468 of 1093, Ext. F, can be relied upon as evidence proving that defendant 19's predeces-sors were enjoying the property only as lessees.

5. The question whether defendant 19 was a Vellala or a Nair was left open although the lower court made it clear in its judgment that on that question also it was inclined to believe the plaintiff's case and reject defendant 19's contention.

6. In the appeal before us it is contended by the appellant's (defendant 19's) learned counsel that there is good documentary evidence to prove that defendant 19 was a Nair and not a Vellala, that Muniswami Mudaliar was not defendant 19's father and there is no evidence at all to prove that he was her father, that the lower court has erred in accepting Ext. F as legal evidence against defendant 19 and acting on the finding therein about the alleged lease to Ama Parvathi and Parvathi Lekshmi and Muniswami Mudaliar, that there is no evidence at all to prove the lease set up by the plaintiff, that defendant 19 and her predecessors had been in possession of the property over 60 years and whatever title defendants 1 to 3 and Subramonia Pillai and Ponnuswami Pillai had in plaint schedule item 1 was lost by their adverse possession and Subramonia Pillai and defendants 1 and 2 had no subsisting title on the date of the mortgages and so the mortgages were not valid and binding on plaint schedule item 1 and could create no charge thereon, that by the judgment in the Land Acquisition case and by their failure to institute a suit for setting aside Ext. G order, within one year of the date of that order defendants 1 and 2 and the plaintiff arc precluded from denying defendant 19's right to and possession of plaint schedule item 1 and from contending that Subramonia Pillai and defendants 1 and 2 had a subsisting title to that item on the date of the mortgages.

7. After hearing both sides we are of the opinion that defendant 19 was not a necessary party to the plaintiff's suit and that the questions arising on her contentions should not have been considered and decided in this suit but left open for adjudication in a fresh suit which may be brought by persons interested at the appropriate time, Although plaintiff had not specified either in the plaint or replication the date from which the possession of defendant 19 and her predecessors-in-interest had commenced the definite case set up by him in the replication was that defendant 19 was the daughter of Muniswami Mudaliar who was defendant 2 in O. S. 1468 of 1093 and that he had taken the building in plaint schedule item 1 on lease from Ponmiswami Pillai, and defendant 19 had obtained possession of the item through Muniswami Mudaliar and the case put forward by him during the evidence stage in the lower court and at the time of the hearing of this appeal is what has been found in O. S. 1468 of 1093 and adopted by the lower Court from the judgment in O. S. Z468 of 1093 and stated as follows in paragraph 7 of the judgment in that suit:

'The first defendant (i. e. defendant 3 in this suit) swears that his father leased the buildings to one Ama Parvathi in 1079, that Parvathi enjoyed the buildings till 1089, that from 1089 to 1092 Parvathi's daughter enjoyed it and that in 1092 he took Ext. IX rent note from the 2nd defendant and his wife. The plaintiff too admits that his father rented the building to Parvathi and that the 2nd defendant is the son-in-law of Parvathi. The evidence of the first defendant is borne out by Ext. IX. I therefore hold that the 2nd defendant enjoys the buildings in pursuance of Ext. IX.'

In paragraph 17 of its judgment the lower court says, 'I have relied on Ext. F (judgment in O. S. 1468 of 1093) for the purpose of showing that defendant 19's predecessors were enjoying the property as lessees only.' Thus the plaintiff's case and the lower court's finding are to the effect that defendant 19 is in possession of plaint schedule item

1 under a lease which Ponnuswami granted to her grand-mother in 1079 and a renewal of which was taken by Muniswami Mudaliar & Parvathi Lekshmi in 1092.

The alleged lease and renewal were both long before the execution of the plaint mortgages, the earliest of which was executed only in 1109, and both the lease and the renewal would be binding on the mortgagors, Subramonia Pillai and defendants 1 and

2 since the lease and the renewal are said to have been granted by the head of their joint family at the time when the family was undivided. So the charge which the plaintiff has obtained by the plaint mortgage is only a charge on the right, title and interest of Subramonia Pillai and defendants 1 and 2 subsisting after the grant of the lease and renewal in favour of defendant 19's predecessors-in-interest -- that is to say, if the plaintiff's case is accepted, the plaint mortgages and the charge which the plaintiff got under these mortgages were subject to the rights created by the lease and its renewal in favour of defendant '19's predecessors.

Since in execution of a mortgage decree what the mortgagee is entitled to sell and what the auc-tion-purchaser will get is only the right, title and interest which the mortgagor had in the mortgaged property at the time of the execution of the mortgage and not any superior right which the mortgagor might have had earlier, all that the plaintiff is entitled to ask for and obtain in this suit is, according to his own case, only a decree for the sale of the right, title and interest which Subramonia Pillai and defendants 1 and 2 had after the grant of the lease and the renewal in favour of defendants 19's predecessors. For enabling the plaintiff to obtain such a decree, which cannot and will not affect the rights of the lessee, it is unnecessary to implead her and adjudicate upon her rights in this suit.

The position of a lessee holding under a lease granted by the mortgagor, or his prcdecessor-in-interest, before the mortgage was executed is analogous to that of a prior mortgagee, for the tight, title and interest of the mortgagor at the time of the subsequent mortgage is only his balance right in the property remaining after the creation of the prior lease or prior mortgage. As the mortgagee gets a charge only on the right, title and interest which the mortgagor had at the time of the mortgage, the rights of the prior lessee, binding on the mortgagor at the time of the mortgage, are as much binding on the subsequent mortgagee as the rights of a prior mortgagee.

Like the prior mortgagee, the prior lessee also is an unnecessary party to a suit for mortgage money clue under a simple mortgage. The mortgagee under a simple mortgage can and will have no right to evict the lessee until he purchases the right, title and interest of the lessor-mortgagor in execution of his decree for mortgage money. Before he purchases the property in execution he has no cause of action at all against the lessee. Therefore, on the case now put forward by the plaintiff, he has at present no cause of action against defendant 19 and so it is not necessary to adjudicate upon her rights in this suit.

8. Likewise, on the case set up by defendant 19 also she is an unnecessary party and it is not necessary to adjudicate upon her rights in this suit. She is claiming plaint schedule item 1 by title paramount and adversely to both the mortgagors and the mortgagee, and it is settled law that a person who sets up a title paramount or is claiming the property adversely to the mortgagor and mortgagee should not be joined as a party in the mortgage suit unless it is alleged that he is a benamidar for the mortgagor or his presence on the party array is necessary for passing an effective decree (See Mulla's Civil Procedure Code. 1953 Edition, page 1080).

In the present suit neither the plaintiff nor defendant 19 has a case that defendant 19 is a benamidar for the mortgagor. Her presence on the party array is also not necessary for passing an effective decree in the suit. This is not a suit for recovery of possession of the mortgaged property in which case it can, perhaps, be contended that a person in possession is a necessary or desirable party in order to enable the plaintiff to get an effective decree in execution of which he can recover posses-sion of the property. As this is only a suit by a simple mortgagee for mortgage money and the decree to be passed in it can direct only the sale of the mortgagor's right, title and interest, it is unnecessary to have on the party array a person claiming the mortgaged property by title paramount to the mortgagor or adversely to him.

The simple mortgagee will get a cause of action against the person claiming the property by title paramount or adversely to the mortgagor only after he purchases the property in execution of his decree for the mortgage money. If the mortgagor pays the mortgage money at any time before the execution sale the mortgagee will have no right at all to the the property, and so the question of possession becomes material only after he purchases the property and gets the right to ask for actual possession. Therefore in either case--on the plaintiff's case as well as on the case set up by defendant 19 -- defendant 19 is an unnecessary party and her contentions are quite foreign to the simple mortgagee's suit for his mortgage money in which a decree can be passed for the sale of only the right, title and interest of his mortgagor.

9. For the reasons stated above, so far as defendant 19 and her rights in plaint schedule item 1 are concerned we set aside all the findings in the lower court's judgment on the issues arising on defendant 19's contentions and leave open the questions arising on her contentions for adjudication in a properly framed suit to be filed by any person interested at the appropriate time and also direct that the sale of plaint schedule item 1 in execution of the decree in this suit, shall not affect the right, title and interest which defendant 19 may have in the said item, and, subject to the above reversal of findings and the above direction, we confirm the lower court's decree except as regards costs.

Defendant 19 will not be liable for the plaintiff's costs in the lower court and plaintiff will get his costs in that court from defendants 1 and 2 and by the sale of his mortgagor's right, title and interest in the mortgaged properties. Defendant 19 will bear her costs in that court. The appeal is allowed to the above extent and dismissed in other respects. Parties will bear their respective costs in this court.


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