1. The defendants are the appellants. They succeeded before the trial Court in resisting the plaintiff's suit for partition and separate possession of her one-third share in the suit properties but they failed to sustain the decree of the trial court before the lower appellate court. The lower appellate court has awarded a decree to the plaintiff for her one-third share in the suit properties.
2. The plaintiff, who is the sister of the first defendant, claimed that she was entitled to partition and separate possession of a third share in the suit property from the first defendant. The second defendant is a mortgage of the suit properties from the first defendant. The suit was resisted by defendants 1 and 2 on the ground that the plaintiff's right to one-third share was lost by adverse possession. The trial Court accepted the defense and dismissed the plaintiff's suit, holding that the plaintiff had lost her title to her one-third share by adverse possession, on the part of the first defendant. The Lower Appellate Court, however, has taken a different view and has held that the first defendant being a co-sharer his possession, however long it may be, would not result in his acquiring title by adverse possession and that, therefore, the plaintiff had a right to claim her one-third share in the suit properties. in that view, it decreed the suit as prayed for by the plaintiff.
3. In this second appeal, Mr. N. S. Raghavan, the learned counsel for the appellants, relied on the decision of the Full Bench in Palania Pillai v. Amjath Ibrahim Rowther : AIR1942Mad622 , and contended that the facts of this case would clearly fall within the scope of that decision and that, therefore, the view taken by the lower Appellate Court that there was no acquisition of title by adverse possession by the first defendant could not be sustained. To find out whether the principle of the Full Bench decision referred to above would apply to the facts of this case, it is necessary to set out a few relevant facts. The suit properties were originally owned by the father of the plaintiff and the first defendant. After his death, his wife, was in possession of the properties for herself and on behalf of the plaintiff and the first defendant, who were then minors. It is not in dispute that from the year 1925 till the year 1944, the mother mortgaged the properties with possession to third parties under various documents Exs. B-1, B-3, B-4 and B-7. The first defendant, even when he was a minor, had gone to Burma and he returned to India only in 1946.
Admittedly, after his return from Burma, the first defendant redeemed the mortgages, Exs. B-1, B-3, B-4 and B-7 and took possession of the properties from the various mortgagees. Subsequent to the redemption of the above four mortgages, the first defendant was in possession of the properties for a year or two and thereafter he in his turn mortgaged the properties to the second defendant under Exs. B-13 to B-17. The plaintiff, who is the elder sister of the first defendant, has kept quiet all these years and has filed the present suit in 1962, claiming her share in the suit properties. Though the trial court has not given any specific finding on the question whether the plaintiff was aware of the mortgages created by the first defendant in favor of the second defendant, the lower Appellant Court has given a specific finding that the plaintiff was not aware of the mortgages executed by the first defendant in favor of the second defendant. But the fact is that the second defendant has been in possession of the properties as a usufructuary mortgagee from the first defendant. It was in those circumstances the question whether the first defendant has acquired title to the share of the plaintiff by adverse possession to the suit properties has to be decided. Plaintiff is admittedly, one of the co-sharers of the properties.
4. In : AIR1942Mad622 there was a suit for partition by one of the many Mohamedan heirs. In that suit for partition, the 8th defendant was a usufructuary mortgagee of a few items of properties. The plaintiff's case was that the 8th defendant was a mortgagee only from a few of the co-sharers and that as such the mortgage would not bind them. The 8th defendant pleaded that, so far as his mortgage was concerned, the suit was barred by the law of limitation. While dealing with the contention that the suit for possession was barred by limitation so far as the usufructuary mortgage in favor of the 8th defendant was concerned, the Full Bench expressed the view thus-
'When one of several co-sharers lets into possession a stranger who proceeds to cultivate the land for his own benefit, the other co-sharers must, unless they deliberately close their eyes, know of what is going on, but if they are so regardless of their own interests they must take the consequence. Where a person who is in possession under a usufructuary mortgage granted by one of several coparceners remains in possession of the land and cultivates it for years, a position which we have here, there can be no doubt that the requirements of continuity, publicity and extent for adverse possession are fully complied with.'
While referring to the contention of the plaintiffs that the usufructuary mortgage having been executed in favor of the 8th defendant by the other heirs without the knowledge of the plaintiffs, adverse possession could not run as against them, the Full Bench expressed the view that it was not necessary to prove any specific knowledge on the part of the plaintiffs about the mortgage, and that it was sufficient that the possession of the mortgage was overt and without any attempt at concealment so that the person against whom time was running ought if he exercised due diligence, to be aware of what was happening. But the decision does not deal with the rights of the plaintiffs as against the other co-sharers and was confined only to their claim as against the mortgagee, the 8th defendant, to recover possession of the property mortgaged without reference to the mortgage.
5. In this case, the mother of the plaintiff and the first defendant had mortgaged the properties to third parties, and the first defendant, who is one of the co-sharers redeemed the mortgages and such redemption could be taken to be also on behalf of the plaintiff, who is the other sharer. As a matter of fact, the first defendant has categorically admitted in his cross-examination that he had no intention of defrauding his sister and that he never ousted the plaintiff from enjoyment of the properties at any time. To establish adverse possession, it is necessary to prove the requisite animus, to prescribe title adversely against the other sharer. When the first defendant himself admits specifically that he had no such animus, it is very difficult to assume that he has acquired title by adverse possession.
I am not in a position to accept the contention of the learned counsel that, applying the decision in : AIR1942Mad622 even the usufructuary mortgagees from the mother should be deemed to have perfected title by adverse possession, that the plaintiff should be deemed to have lost her title to the property even before 1946 and that, when the first defendant redeemed the properties in the year 1946, he should be deemed to have acquired title to the properties, especially when there is no evidence that the redemption of the mortgage was also on behalf of the plaintiff. It is not necessary for the court to find out now whether the redemption by the first defendant of the mortgages created by the mother was for his exclusive benefit or for the benefit of the plaintiff also in view of the fact that the first defendant has himself admitted that he never wanted to set up exclusive title to the suit properties as against the claims of his sister, the plaintiff.
This admission has rightly been taken by the lower Appellate Court as establishing the fact that the first defendant had redeemed the mortgages on behalf of himself and the plaintiff. Therefore the decision in : AIR1942Mad622 will not held the first defendant to establish his plea that the plaintiff has lost her title to her share in the suit properties and that he himself has acquired title to the entirely of the suit properties. I therefore uphold the view of the lower Appellate Court that the first defendant has not perfected title to the suit properties by adverse possession.
6. The lower Appellate Court has, however, overlooked an obvious fact. The first defendant is a co-owner and has admittedly redeemed the mortgages created by the mother in respect of the suit properties (Exs. B-1,B-3,B-4,B-7) and therefore he is entitled to get into the shoes of the mortgagee and he could resist the claim of possession of the plaintiff's share so long as the mortgage money referable to her share is not paid to him. The mortgages had been created by the mother of the plaintiff and the first defendant and only if the mortgages are redeemed by them they would be entitled to claim possession from the mortgagees.
The first defendant having redeemed the mortgages, he is entitled to be paid the plaintiff's share of the mortgage money. Therefore the plaintiff's right to get her one-third share of the suit properties will have to be conditional on her paying her aliquot share of the mortgage money to the first defendant who had admittedly redeemed the mortgages. Therefore, this matter shall be gone into by the trial court at the time of the final decree proceedings and the exact amount of the plaintiff's share of the mortgages money has to be worked out and there should be a direction to the plaintiff to pay the said sum to the first defendant as a condition precedent to her getting her share of the suit properties from the first defendant.
7. It is also seen that the lower Appellate Court has granted a decree for mesne profits in relation to the suit properties as against the first defendant. I do not see how this decree for mesne profits could be sustained. Admittedly the first defendant redeemed the mortgages created by the mother and the properties were in the possession of the various persons as mortgages, till he redeemed. After redeeming the properties from those mortgagees the first defendant in his turn mortgaged them usufructuraily with possession to the second defendant. Therefore, the first defendant has not been in possession of the suit properties for any substantial period. As I have already stated, the plaintiff's right to get her share will arise only on her paying her aliquot share of the mortgage money in respect of the mortgages, Exs. B-1, B-3, B-4 and B-7. There is no question of getting her mesne profits either from the first defendant or from the second defendant. Therefore, the decree for mesne profits is set aside. But it goes without saying that the plaintiff will be entitled to mesne profits, the moment she deposits or pays her share of the mortgage money on ascertainment by the trial Court. The decree of the Lower Appellate Court will stand modified to the extent indicated above. There will be no order as to costs. No leave.
8. Appeal partly allowed.