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Sarvotama Kamath and ors. Vs. Abdulla Beary and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 886 of 1953
Judge
Reported inAIR1957Mad192
ActsLimitation Act, 1908 - Schedule - Articles 134, 142 and 144
AppellantSarvotama Kamath and ors.
RespondentAbdulla Beary and ors.
Appellant AdvocateA. Narayana Pai, Adv.
Respondent AdvocateB.K. Nambiar, ;M. Raghavan, ;S. Ramayya Nayak and ;G.K. Govinda Bhat, Advs.
DispositionAppeal allowed
Cases ReferredSeshamma Shettati v. Chikaya Hegada
Excerpt:
.....by limitation - unsufructory mortgage was executed and 30 years fixed for payment - reversioner entitled to possession on death of limited estate holder - reversioner could assert this right before expiry of period for suit for redemption of usufructory mortgage - in present suit such period would be 60 years in view of 30 years granted in document - held, suit not barred by limitation. - - kunhi pathumma, ilr 40 mad 1040: air 1919 mad 9721, whose view was endorsed by abdur rahman j. 262, 263 and 2032 of 1952 (mad) (c), where i also suggested that the law commission might take notice of the rather unjust results that might result in the application of article 134 to particular cases the like of which are dealt with not only in this judgment but in the judgment referred to, and..........| | | | | | | girla appaya devamma keshva subrayaon 20th october 1945, the plaintiff acquired the suit properties by sale deed ex. a-2 from apayya, son of pakkira, who claimed to be the reversioner of the last male holder kesava alias subraya to whom the suit properties belonged. keshava died issueless in about 1890 and after his death, the parties being governed by mitakshara law, parameswari would be the heir. but the suit mortgage was executed both by parmeswari and her daughter devamma, sister of the last male holder kesava the recitals in the document showing that the properties belonged to them hereditarily. parameshwari died in 1908, and after her death, devamma, it appears, applied to have transfer of the registry in her name and having secured it, purported to sell the suit.....
Judgment:

Krishnaswami Nayudu, J.

1. The plaintiff is the appellant. The suit out of which this appeal arises is a suit for redemption of a usufructuary mortgage, Ex. A-1, dated 24-7-1907 executed by two ladies, Parameshwari and Devamma, in favour of Raghuvayya, for a sum of Rs. 550 the period fixed for payment being thirty years. The right to redeem the property, would therefore accrue in 1937. The following genealogical table may be helpful in appreciating the facts of this case :

GIDDU SHEREGARA

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______________________|______

| |

| |

Giriya Subraya-Devakiamma

| |

| |

Pakira Malinga-Parameshwari

| |

_______|__________ ________|__________

| | | |

| | | |

Girla appaya Devamma Keshva SubrayaOn 20th October 1945, the plaintiff acquired the suit properties by sale deed Ex. A-2 from Apayya, son of Pakkira, who claimed to be the reversioner of the last male holder Kesava alias Subraya to whom the suit properties belonged. Keshava died issueless in about 1890 and after his death, the parties being governed by Mitakshara law, Parameswari would be the heir. But the suit mortgage was executed both by Parmeswari and her daughter Devamma, sister of the last male holder Kesava the recitals in the document showing that the properties belonged to them hereditarily. Parameshwari died in 1908, and after her death, Devamma, it appears, applied to have transfer of the registry in her name and having secured it, purported to sell the suit properties to the mortgagee Raghavayya under Ex. B-7 dated 6th February 1912.

On the same day she got a gift of a portion of the properties she sold to Raghuvayya under Ex. B-21 The properties obtained by Devamma by gift from the mortgagee-purchaser were mortgaged by Devamma to the fifth defendant under Ex. B-23 dated 27-11-1928. The mortgagee Raghavayya claiming to be the owner of the properties on the strength of the sale deed Ex. B-7 in his favour, purported to deal with the same by executing usufructuary mortgages of portions of the properties by three documents. Exs. B-9 B-10 and B-63 dated 20-11-1914, 9-1-1917 and 25-5-1917 respectively. The mortgagees are now in possession of the property.

2. The suit was mainly resisted on the ground that it is barred by limitation, the contention being that by reason of the transactions covered by Exs. B-9, B-10 and B-63 the suit Is barred by Article 134 as more than twelve years had elapsed since the date of those documents, slice a suit to recover possession of such immoveable properties mortgaged and afterwards transferred by the mortgagee for valuable consideration is governed by Article 134. As regards the other properties which were the subject-matter of the mortgage Ex. A-1, the contention is that they are barred by Article 144 as Devamma subsequent to the death of her mother Parameshwari, and thereafter Raghavayya have been in possession as absolute owners and have therefore prescribed title by adverse possession. The trial Court rejected both the contentions and granted a decree. In appeal the learned District Judge took a contrary view on both these questions.

3. It appears to me that in so far as the transactions covered by Exs. B-9, B-10 and B-63 are concerned, there is no answer to the application of Article 134 as it is worded, since though the 'transactions under Exs. B-9, B-10 and B-63 are only usufructuary mortgages executed by Raghavayya who at the inception, on the date of Ex. A.1 in 1907 was a usufructuary mortgagee, but on the dates of Exs. B-9, B-10 and B-63 purported to execute those mortgages not as a usufructuary mortgagee, but as owner claiming title under Ex. B. 7.

The right to redeem would arise only in 1937 and a contention that a cause of action cannot be held to be barred even before the cause of action can accrue was raised, relying on the view of Srinivasa Aiyangar J. in Seeti Kutti v. Kunhi Pathumma, ILR 40 Mad 1040: AIR 1919 Mad 9721, whose view was endorsed by Abdur Rahman J. in Krishnaswami Iyer v. Sabarathnam Chetti : AIR1938Mad394 , but as the other learned Judges in ILR 40 Mad 1040: AIR 1919 Mad 972 had observed, there is no scope for importing into the language of Article 134 any general principles which may be more equitable and just, and with the language of Article 134 as it is, there is no scope for importing into it ideas of equity and fairplay.

In the circumstances Article 134 was held to apply to any case whether the cause of action had arisen as contemplated under Article 134 or not, and in view of the language of Article 134 and the view taken by Coutts Trotter J. and the other learned Judges, there does not seem to be any way except to hold that though as it is framed, it is a suit for redemption, no question of redemption would arise, and it is really a suit to recover possession of properties, and twelve years having elapsed since Ex. B. 7, the plaintiff's right to recover possession is barred. Another aspect of the inequitable results to which application of Article 134 would lead to I had occasion to consider in S. A. Nos. 262, 263 and 2032 of 1952 (Mad) (C), where I also suggested that the Law Commission might take notice of the rather unjust results that might result in the application of Article 134 to particular cases the like of which are dealt with not only in this Judgment but in the Judgment referred to, and consider the revision of Article 134 whether it should continue in the statute book or whether any appropriate amendments should be effected in order to relieve the harsh and inequitable results if this provision in the Limitation Act has to be retained.

4. As regards the other properties not covered by Exs. B. 9, B. 10 and B. 63, I am unable to follow the reasoning of the learned District Judge in holding that Article 144 is a bar. It is well established that so long as the mortgage subsists, a person who has come into possession as mortgagee cannot by setting up, during the continuance of such relation, any title adverse to that of the mortgagor inconsistent with the real legal relation between them and that however notoriously and to the knowledge of the other party acquired by the operation of the law of limitation, title as owner, or any other title inconsistently with that under which he was let into possession, vide Seshamma Shettati v. Chikaya Hegada, ILR 25 Mad 507. The argument on behalf of the respondents and the reasoning of the learned District Judge is that Devamma who had no right to the property as Parameshwari alone was the heir of the last male holder, having joined in the execution of the mortgage representing that both were entitled to the property and subsequently, after the death of Parameswari she having dealt with the property as full owner by selling them to Raghavayya. Raghavayya as purchaser continuing in possession has prescribed title by adverse possession. But for Devamma's Joining in the mortgage Ex. A. 1 and her transaction of sale, Ex. B. 7 this argument would not be open to the respondents. But if a person who has no title to the property purports to deal with the same and professes to sell the property to a mortgagee, would it change the character of possession of the mortgagee or the nature of the property is the question. In so far as the persons that are rightfully entitled to the property are concerned, namely, representatives of the mortgagors, Raghuvayya cannot prescribe any title by adverse possession against them, for the reason that his possession could be only as a mortgagee in so far as the mortgagors are concerned, and the character of Raghavayya's possession must therefore be considered to be that of a mortgagee's possession unless it is shown that any such acquisition of possession as owner had been recognised by the rightful heirs, in which event It might be contended that the persons who are parties to such acquiescence might be estopped from contending to the contrary. But in this case it is urged that Giriya and Appayya were examined in connection with a dharkast of the adjoining land and certain statements made by them, Ex. B. 49, were relied upon. I have gone through Ex. B. 49; but it does not relate to any question of transfer of title. The statement made by Giriya and Appayya relates only to the grant of softie additional rights to possession relating to the subject matter of the mortgage and the adjoining property. In the circumstances, I am unable to find any conduct on the part of Appayya or Giriya to show that they recognised the title of Raghuvayya as full owner. So long as the mortgage subsists and the right to redemption has not become barred, I am unable to understand what steps a reversioner, who is no doubt entitled to possession on the death of the limited estate holder, could take to assert his rights, as the only right he could assert is to ask for possession, which right he could assert before the expiry of the period for a suit for redemption of a usufructuary mortgage, which in this case would be more than sixty years in view of the thirty years' period granted under Ex. A. 1. The suggestion of the learned Judge that the reversioner should have filed a suit and obtained symbolical possession is not correct. On the facts of this case I am unable to hold that in so far as the properties not covered by Exs. B. 9, B. 10 and B. 63 are concerned, it could be said that the plaintiff as purchaser of equity of redemption has lost his right to redeem the property by limitation or otherwise.

5. The result is the appeal is allowed in respect of the properties not dealt with under Exs. B. 9, B. 10 & B. 63 with proportionate costs throughout No leave. As regards the amount which will be payable by the plaintiff, which will be in relation to the value of the property decreed to be redeemed, the amount will be fixed by the trial court, which will also fix the time for payment of the amount.


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