1. This appeal by the plaintiff in a suit for recovery of possession with mesne profits, involves a question of considerable interest. We may take the following facts as established beyond controversy by the record. One Velayudhan Pillai, the original owner of the suit property, died on 6-1-1954, leaving a registered will. After the death of this testator, the common ground now between the parties is that his widow Ramu Ammal held the property in her own right, according to the stridhana law of succession. Her daughter Kanthimathi Ammal succeeded to the property after Ramu Ammal, and the parties are agreed that, according to the law of Hindu Mitakshara succession, Kanthimathi Ammal had only a life interest. This Kanthimathi Ammal executed a usufructuary mortgage in respect of the suit property, the assignee of which, ultimately, was the 13th defendant in the suit. Kanthimathi Ammal was alive when the Hindu Succession Act XXX of 1956 came into force. She died on 7-2-1957, without issue.
The plaintiff (appellant) instituted the suit for recovery of possession as against the usufructuary mortgagee in possession (13th defendant) on the following basis. Kanthimathi Ammal was, admittedly the holder of a. limited or life interest. She could certainly create a usufructuary mortgage over the property, but, ordinarily, that interest would not subsist in favour of the mortgagee beyond her lifetime. Under those circumstances, the plaintiff broadly pleaded, both as the reversioner of Velayuthan Pillai and as the actual heir of this Kanthimathi Ammal, that he was entitled to possession of the mortgaged property.
2. The usufructuary mortgagee (respondent) contested the suit upon certain grounds which we shall immediately examine. In the trial court, the suit was decreed. In the first appeal, the learned District Judge of Tirunelveli observed, and the corredness of this observation is not in dispute, that the lower court was in error in thinking that Section 14 of Act XXX of 1956 did not enlarge the limited interest of Kanthimathi Ammal in the suit property to an absolute interest. The learned Judge pointed out that the word 'possession' as occurring in Section 14 of the Act, would imply possession of any character or category recognised by law, and not merely physical possession. As I have stated it, the parties now do not dispute that the interest of Kanthimathi Ammal became enlarged to an absolute interest before her death.
3. The following questions obviously arise for determination, before, the mortgagee (respondent) could be called upon to surrender possession to the plaintiff, whether the plaintiff be viewed as the reversioner of Velayuthan Pillai, or as the heir of Kanthimathi Ammal. Before formulating the questions that arise for determination, I may clarify one of two ancillary issues of fact. Firstly, it was well established that plaintiff was the heir of Kanthimathi Animal, in addition to being the nearest reversioner of Velayuthan Pillai. Secondly, no attempt was made to show that the usufructuary mortgage, Ex. B.1, wat executed for any necessity, which would ordinarily bind the reversioner to a Hindu widow, or other limited holder of a woman's estate. It is sufficient to set forth the following observation from paragraph 16 of the judgment of the first court:
'No attempt has been made to show that Ex. B.1 was executed for any necessity.'
We may hence take it (1) that plaintiff is the heir of Kanthimathi Ammal and (2) that the assignee (13th defendant) cannot plead, on the facts of the record, that the mortgage was executed for legal necessity which would bind the reversioner to the limited owner.
4. Nevertheless, it is obvious that the mortgagee (13th defendant) could prima facie resist the suit upon other grounds as well. He could plead, for instance, that since the interest of Kanthimathi Ammal was enlarged to an absolute interest, before her death, the interest of the mortgagee or the assignee was also enlarged ipso facto. Secondly, the mortgagee could plead that, upon the doctrine of 'feeding the estoppel', the principle embodied in Section 43 of the Transfer of Property Act, the heir of Kanthimathi Ammal was estopped from questioning the right of the mortgagee to continue in possession till the extinction of the mortgage, because Kanthimathi Ammal acquired an absolute interest before her death. Thirdly, it could be pleaded by such a mortgagee that the heir (plaintiff) could not sue for possession, without specifically suing to set aside the alienation by the person under whom he claims, the limited owner. This argument is sought to be pressed, upon the basis that the plaintiff is suing as the heir of Kanthimathi Ammal, as far as the arguments in second appeal are concerned, since the source of his right as the reversioner to Velayuthan Pillai is not now in controversy or agitated in his favour.
5. I have carefully examined all these arguments. The last of them appears to have found favour with the learned District Judge, in the first appeal. But I have no doubt that, on deeper scrutiny, it will be found that none of these arguments is a valid defence to the present suit. There are also other authorities in support of this view. It will hence be sufficient to set them forth here.
6. As far as the enlargement of the right of Kanthimathi Ammal under Section 14 is concerned, there can be no doubt whatever that this enlargement, which is admitted, does not affect the right of the mortgagee or enlarge his interest thereby. This was pointed out, in no uncertain terms, by their Lordships of the Supreme Court in Kotturu-swami v. Veeravva, : AIR1959SC577 in a passage. The reason for this view is that the real object of the Act was to improve the legal status of Hindu women, enlarging their limited interest in property inherited or held by them into an absolute interest, provided that such limited owners were in possession of the property when the Act came into force. The legislature never intended that alieness from such holders of a Hindu Woman's estate, who, in the language of their Lordships 'with their eyes open purchased the property from the limited owners without justifying necessity before the Act came into force, and at a time when the vendors had only a limited interest of Hindu woman', should be benefited by any consequential and automatic enlargement of their interest. The passage applies with equal force to a mortgagee from a limited owner, without necessity and with due knowledge of the character of the rights possessed by the mortgagor.
7. For clearly there is no room, in principle, for distinguishing the case of a mortgage, which is one kind of alienation, from an outright sale, which is another kind. The usufructuary mortgagee in the present case, therefore, obtained this mortgage with full knowledge that it would subsist only during the lifetime of Kanthimathi Ammal. He was further aware that the loan was not for any necessity that would bind the reversioner to the lady. He was prepared to take that risk. I do not see why the subsequent coming into force of Section 14 of the Act should enlarge his rights, in any sense.
8. The argument with regard to Section 43 obviously fails, upon the plain terms of that section itself. For the doctrine of 'feeding the estoppel' can apply only where alienor, vendor or mortgagor, makes a fraudulent or erroneous representation that he was authorised to transfer interest in the property by virtue of an absolute title possessed by him. It is only in such case that the subsequent enlargement of the interest of the alienor or transferor will benefit the transferee; in such a case, certainly, an heir or person claiming-under the alienor may be equally estopped. The matter was noticed at some length in Marudakkal v. Arumugha Gounder, : (1958)1MLJ101 , the judgment of a Bench of this courf. After setting forth the terms of Section 43, the learned Judges observed:
'The first part of Section 43 relating to erroneous representation cannot therefore be brought into play in the case of an alienation by the holder of a woman's estate, which is not binding on the reversioners.''
The learned Judges gave the reason that, in such a context, 'it cannot be said that there was any representation on the part of the woman, which the alienee, unaware of its truth or effectiveness, acted upon.' I respectfully associate myself with this reasoning, and hold that the principle cannot be invoked to benefit the mortgagee in the present case.
9. Finally, I have to notice the argument that a suit of this character is not maintainable, because the plaintiff is suing as the heir of Kanthimathi Ammal, and he is hence bound to sue specifically to set aside the alienation, before he could obtain possession. The matter has been put in the following form by the learned District Judge in first Appeal:
'If in the view I have taken Kanthimathi Ammal was the full owner by virtue of Section 14 of the Hindu Succession Act, any person claiming under her will have to set aside any alienation which he attacks.'
I think that this observation is based upon an evident fallacy. The observation would certainly hold good if Section 14 had operated, not merely to enlarge the interest of Kanthimathi Ammal into an absolute interest, but equally to enlarge the right of the mortgagee. But that is not the case. There is no necessity to set aside the alienation, for the simple reason that the alienation was valid during the lifetime of the limited owner alone, and was understood to be so valid between the parties. The subsequent enactment did not operate, in law, to enlarge the interest of the mortgagee. That being the case, the simple suit for recovery of possession, on the indisputable ground that the mortgage was no longer subsisting, was certainly maintainable. I have been shown no reason for thinking otherwise.
10. For all these reasons, I am of the view that the mortgagee or the assignee cannot resist this action for recovery of possession of the hypotheca, because of the simple ground that the usufructuary mortgage is no longer subsisting. However, since there are certainly some equities in favour of the mortgagee or the assignee, Kanthimathi Ammal, having died not very long after the execution of the suit mortgage, I direct that the heir (plaintiff) shall now have a decree for possession only, without mesne profits. I further direct that the decree shall be enforceable only after a period of three months from this date, if possession is not rendered in the meanwhile by the assignee in possession (respondent). Future mesne profitswill accrue only thereafter. With regard to themortgage debt itself, learned counsel for the respondent urges that the debt is not extinguished,and that it is enforceable against the heir as suchas a claim for money lent. I express no view uponthe tenability of this argument, and the parties willhave to be left to their remedies, if any, in thatrespect. The second appeal is accordingly allowedto the extent indicated above. The parties will beartheir own costs throughout. Leave refused.