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Sinnanan Chetty Vs. Sivakami Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1921Mad326(1); (1921)41MLJ501
AppellantSinnanan Chetty
RespondentSivakami Ammal and anr.
Cases ReferredJai Kishen Joshi v. Budaanand Joshi I.L.
Excerpt:
- - 2. taking the case then as one by a mortgagor to recover from his co-mortgagor his share of the property mortgaged on payment of his share of the expenses of redemption it is clearly a case which falls under section 95 of the transfer of property act......ihe whole mortgage and remaining in possession thereof and the other co-mortgagor bringing a suit to recover his share of the mortgaged property on payment of his share of the mortgage debt there being no other expenses of redemption. we are therefore relieved from considering whether that is the correct position on the facts of the case.2. taking the case then as one by a mortgagor to recover from his co-mortgagor his share of the property mortgaged on payment of his share of the expenses of redemption it is clearly a case which falls under section 95 of the transfer of property act. that section gives a charge to the redeeming mortgagor against his co-mortgagor and nothing more.3. the question that has been raised here for decision is one of limitation. appellant wants us to.....
Judgment:

1. This case has been argued before us by both sides on the footing that it is a case of a co-mortgagor redeeming Ihe whole mortgage and remaining in possession thereof and the other co-mortgagor bringing a suit to recover his share of the mortgaged property on payment of his share of the mortgage debt there being no other expenses of redemption. We are therefore relieved from considering whether that is the correct position on the facts of the case.

2. Taking the case then as one by a mortgagor to recover from his co-mortgagor his share of the property mortgaged on payment of his share of the expenses of redemption it is clearly a case which falls under Section 95 of the Transfer of Property Act. That section gives a charge to the redeeming mortgagor against his co-mortgagor and nothing more.

3. The question that has been raised here for decision is one of limitation. Appellant wants us to apply Article 148 to this suit but we think it is not possible on its wording to apply that article as this is not a suit to redeem a mortgage but one to recover possession of property on payment of the charge created by Section 95. This is the view taken in Vasudev v. Balaji I.L.R(1920) . 26 Bom. 500 which has been adopted in Munia Gounden v. Ramasami Chetly (1918) L.R. 41 Mad. 650 and Puma Chandrapal v. Barada Prosanna Bhattacharya I.L.R.(1918) Cal. 111. It is true the Allahabad Court has taken a different view in Ashfag Ahmad v. Wazir Ali I.L.R.(1889) All. 1 but even in that court there seems td be some difference of opinion, see Jai Kishen Joshi v. Budaanand Joshi I.L.R(1915) . All. 138 . With all respect we prefer to follow the view taken by the Calcutta, Bombay and Madras Courts.

4. Article 148 not applying, the only other article that could, be applied is Article 144. The District Judge has found that adverse possession began either when the sale to Mada Nadan ignoring altogether plaintiff's vendor's 'rights in the property was made and he began to hold the property under that title or at any rate when the plaintiff's vendor claimed possession from Mada Nadan in 1901 by Ex. I and he refused to give possession.

5. More than 12 years have elapsed from either point of time and we need not therefore decide which of them was the real starting point of adverse possession. The suit is therefore barred'under Article 144 and was rightly dismissed by the lower appellate Court.

6. The Second Appeal fails and is dismissed with costs.


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