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Durgasi Pydivadu and ors. Vs. Jampana Suryanarayanaraju Garu and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberAppeal No. 491 of 1945
Judge
Reported inAIR1951Mad384
ActsLimitation Act, 1908 - Schedule - Articles 144 and 148
AppellantDurgasi Pydivadu and ors.
RespondentJampana Suryanarayanaraju Garu and ors.
Appellant AdvocateC.V. Dhikshitalu, Adv.
Respondent AdvocateE. Venkatesam, Adv.
DispositionAppeal dismissed
Cases ReferredPeria Aiya Ambalam v. Shanmugasundaram
Excerpt:
- .....on 6-6-1947 neither they nor the plaintiffs ever collected from the mortgagers the proportionate surplus profits due to the mortgagor. so far as the plaintiffs are concerned, they were entitled to rs. 37-8-0 out of the money surplus and 1 and 7/8 puttis of paddy out of the 2 1/2 puttis of paddy per year. it is the case of the contesting defendants that defendant 9 even though all his rights, namely, the equity of redemption which he possessed over the properties were sold away by o. s. no. 212 of 1922, still be collected from the mortgagees surplus profits every year. on this basis mr. dhikshitalu for the appellants contends that defendant 9, after he was divested of all hisrights in the equity of redemption, having collected the surplus profits for a period of 12 years has acquired.....
Judgment:

Govinda Menon, J.

1. Various questions have been argued by Mr. Dhikshitalu for the appellants and for a proper understanding of those points it is necessary to set out in brief outlinethe facts which resulted in this litigation. Defendants 1 to 3 and 9 and 10 in O. S. No. 22 of 1944 on the file of the Court of the Subordinate Judge of Chicacole are the appellants in this appeal. Respondents 1 and 2 as plaintiffs brought a suit for redemption of two mortgages, Exs. D-1 and D-2 dated 19-6-1922 and 2-4-1923, respectively. The property belonged to defendants 9 and 10, a husband and wife, as tenants-in-common. Both of them mortgaged the properties by two mortgages to defendants 1 to 8. On the basis that each one of them had a separable interest in the properties, a creditor of defendant 9 brought O. S. No. 212 of 1922 on the file of the District Munsif of Vizianagaram for realisation of a sum of money and got a decree. In execution of the decree, a half-share in the equity of redemption of the mortgaged properties was sold and purchased by those creditors. Constructive possession of the same was delivered over to them by the delivery receipt dated 6-6-1927. The purchasers were, G. Appalanaidu and Rajunaidu. These purchasers sold what they had purchased to the plaintiff for a sum of Rs. 2500 on 31-1-1923. Thereafter, defendant 10 sold a half share of her right, that is, one fourth of the equity of redemption to defendants 1 to 3 on 24-4-1928. It is admitted that such a sale has taken place though the sale deed has not been exhibited before the Court. On 12-4-1930, by Ex. P-2, defendant 10 sold the remaining one-fourth share in this property to the plaintiffs. The result of these transactions is that the plaintiffs have become owners of the three-fourths of the equity of redemption and defendants 1 to 3 who were some of the mortgagees became the owners of the remaining one-fourth of the equity of redemption.

2. While matters were in that state the present plaintiffs brought O. S. No. 265 of 1933 on the file of the District Munsif's Court, Vizhakapatnam, evidenced by EX. D-4 in which the plaintiffs claimed to be in possession of the half share and contended that they were entitled for partition and recovery of possession of the half share. This suit was laid on the basis of the assignment of the half share of defendant 9 by the purchasers Appalanaidu and Rajunaidu. No claim was set up on the footing of the plaintiffs' purchase of the one-fourth share of defendant 10 under Ex. P 2. We are not fully conversant with the details of that litigation but we find that on 11-10-1933, on the ground that the suit as framed was not maintainable, it was dismissed by the trial Court. An appeal was taken to the Court of the Subordinate Judge, Vizhakapatnam, as A. S. No. 133 of 1934. Exhibit P-4 is the decree therein by which it was found that the plaint was ordered to be rejected under Order 7,Rule 11, Civil P. C. The outcome of the decision in A. S. No. 133 of 1944, is that the provisions of Order 7, Rule 11, were invoked and the plaint was rejected. In the meanwhile, after purchasing the equity of redemption from Appalanaidu and Rajunaidu, tha plaintiffs paid in all a sum of Rs. 1250 in two instalments to the mortgagees namely, defendants l to 8 on 24-4-1928 and 25-4-1928 respectively. It it admitted and the matter is now beyond question that the mortgagees have received half the amount of the mortgage sum namely Rs. 1250. The present suit is for redemption and partition of the plaintiffs' three-fourth share of the property, by paying the balance of the proportionate mortgage amount and also for claiming the mesne profits proportionate to the plaintiffs.

3. The learned Subordinate Judge has decreed the suit practically as prayed for except disallowing one item by name Baddi madi which is the subject-matter of the memorandum of cross objections by the respondents 1 and 2 (plaintiffs). We will deal with that at a later stage.

4. Exhibit D-1 is a mortgage for a sum of Rs. 2000 dated 19-6-1922 and therein it is stated that out of the income of the suit properties which was fixed at Rs. 255 the mortgagee was to appropriate the interest at the rate of 9 annas per cent. per mensem. This amount came to Rs. 135 and a sum of Rs. 70 has to be appropriated by the mortgagee for payment of kattubadi, quit rent, land cess etc., for the suit properties. The balance income of Rs. 50 and 2 1/2 puttis of paddy were to be paid by the mortgagees to the mortgagor by the 30th of Palguna Bahula of each year and receipts taken for that payment. The second mortgage for Rs. 600 recites the earlier transactions and it is more or less in the nature of an additional advance of a further mortgage amount. It is not necessary to refer to its terms in detail.

5. What has happened is that even though the plaintiffs' predecessors, Appalanaidu and Rajunaidu got constructive possession of the joint right to the properties on 6-6-1947 neither they nor the plaintiffs ever collected from the mortgagers the proportionate surplus profits due to the mortgagor. So far as the plaintiffs are concerned, they were entitled to Rs. 37-8-0 out of the money surplus and 1 and 7/8 puttis of paddy out of the 2 1/2 puttis of paddy per year. It is the case of the contesting defendants that defendant 9 even though all his rights, namely, the equity of redemption which he possessed over the properties were sold away by O. S. No. 212 of 1922, still be collected from the mortgagees surplus profits every year. On this basis Mr. Dhikshitalu for the appellants contends that defendant 9, after he was divested of all hisrights in the equity of redemption, having collected the surplus profits for a period of 12 years has acquired adverse possession of the equity of redemption as against the plaintiffs and therefore the plaintiffs' suit is not maintain, able. In other words, what the learned counsel contends is that the right to collect part of the surplus proceeds should be deemed to be a right to possession inherent in the purchasers of a part of the equity of redemption and they not having exercised it for a period of 12 years, must be deemed to have lost it and the same acquired by defendant 9 as if he was a stranger. The argument is put in this way. Supposing a usufructuary mortgagee in possession liable to pay the surplus profits every year to the mortgagor and without paying that to the mortgagor pays it to a third party for a period of 12 years, then that third party acquires the equity of re-demption by prescription and despite the fact that the usufructuary mortgagor has, under Article 148, Limitation Act, 60 years from the date of the mortgage to redeem the mortgage, his right to redeem is lost by the third party being paid the surplus profits. No authority has been shown by the learned counsel in support of this novel argument of his. Under article 148, Limitation Act, it is open to a mortgagor who has usufructuarily mortgaged his properties to redeem the mortgage before 60 years elapse from the date of the mortgage and at the time of such redemption under the provisions of T. P. Act, he is entitled to ask the mortgagee to account for the surplus income and profits which the latter has realised during the course of his possession of the property. Exhibit D- 1 does not say that the surplus profit is equivalent to rent at all. Nor does it make the surplus profits a charge on the mortgage money. The mortgage is for a period of five years. It is not open according to the terms of the document, for the mortgagor to sue separately either on the small cause side or on the original side for the recovery of the surplus profits every year and get the same All that the mortgagor can do will be to ask the mortgagee to account for the profits which he has realised and which he ought to have paid every year to the mortgagor at the time of redemption. In a case where the usufructuary mortgagee has been dispossessed by a third party who remained in possession without recognising even the mortgagor's title, this Court has held in Peria Aiya Ambalam v. Shanmugasundaram, 38 Mad. 903 : A. I. R. 1914 Mad. 334 that what the trespasser gets is only a right to the mortgage and he does not prescribe an absolute title to the equity of redemption as against the mortgagor. Applying those principles to the facts of the present case,it seems to us that the mere fact that the mort- gageea have been paying surplus profits for a period of 12 years to defendant 9 who was once the owner of part of the equity of redemption should not be construed as taking away from the purchasers of the equity of redemption the right to redeem inherent in them under the provisions of the Limitation Act for a period of 60 years. This contention of the learned counsel, unsup-ported as it is by any authority by which we are bound, has therefore to be rejected.

6. The second argument is that according to the sale deed Ex. P- 2 dated 12-4-1930, a sum of Rs. 1250 has been reserved with the present plaintiffs for payment of the mortgage money due to the mortgagees and this not having been paid, EX. p. 2 became a document without con-sideration and as such nominal and void. It is further argued that the recital of a payment of Rs. 280 the balance consideration under Ex. P. 2, was a fictitious one and in fact no payment has-been made The learned Subordinate Judge has found that the sum of Rs. 250 has been received as was recited in the mortgage but by defendant 9 the husband of defendant 10. He has not gone into the box to disprove the apparent tenor of the recital contained in Ex. p. 2. In the absence of any evidence to show that the sum. of ES. 250 has not been paid by the plaintiffs we are in entire agreement with the Subordinate-Judge that the contesting defendants have not discharged the onus of proof that lay heavily on them. If the plaintiffs have not paid the sum of Rs. 1260 being part of the consideration to the mortgagees, the question would only be that as between the seller and the purchaser, the seller will have an unpaid vendor's lien over the property sold which he could enforce under the provisions of Sections 54 and 65, T. P. Act. But no such question arises in a suit for redemption of a mortgage by the purchaser. We do not find that there is any justification for the argument of the learned counsel.

7. The third point raised by Mr. Dhikshitalu is that so far as the mesne profits are concerned, the accounting has not been on a proper basis. He invited our attention to para. 18 of the learned Subordinate Judge's judgment where the learned Judge haa stated in detail as to how he arrived at the sum of Rs. 976-14-0 due to the plaintiffs. Mr. Venkategam for the respondents contends that the question about the correctness of the amount has not been taken in the memo-randum of appeal and as such it is not open to the appellants to canvass it now at the time of hearing. We agree that in the absence of any grounds and in the absence of any justifiable reasons as to why the account should not be accepted, it seems to us that the appellants arenot entitled to put forward that contention now, This contention has also to be rejected.

8. Mr. Dhikshitalu then argues that so far as defendants 4 to 8 are concerned, they are also equally liable to pay the amount to the plaintiffs and not defendants 1 to 3 alone. It seems to me that this argument is correct. Defendants 4 to 8 are equally in possession of the property as defendants 1 to 3, and as mortgagees liable to account to the mortgagors, they must also be made liable on an equal footing as defendants l to 3. The decree of the Subordinate Judge will be modified to that extent. In other respects we confirm the decision of the Subordinate Judge and dismiss the appeal with costs.

9. There is the memorandum of Gross-objections by the plaintiffs who are respondents 1 and 2 regarding a land by name Baddi madi. It transpires that the original mortgage consisted of a property by name Kanchika madi, but the mortgagors sold away that property to a third party and instead have exchanged this land by name Baddi madi. It is, therefore, con-tended by the plaintiffs that since Baddi madi is substituted security for a portion of the original security, they are entitled to recover possession of portion of that aleo. But unfortunately for the plaintiffs there is nothing to show that in O. S. No. 212 of 1922 thia Baddi madi was ever sold or purchased by Appala-naidu and Rajunaidu. Unless it is shown that Appalanaidu and Bajunaidu have purchased Baddi madi and constructive possession of the same was delivertd over to them on 6-6-1927, it is not open to the plaintiffs now to say that they are entitled to the property. They are certainly entitled to sell Kanchika madi because whatever transactions defendant 9 may have had with that property after the execution of the mortgage, such dealings would not affect the mortgagees' rights They have also not proved that Kanchika madi was the subject of O. S. No. 212 of 1922. In such circumstances whatever remedies they may have with regard to the substituted security it is not open to the present plaintiffs to claim Baddi mndi in this suit.

10. The memorandum of cross-objections also fails and is dismissed with costs.


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