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Somalinga L. Rengier and ors. Vs. Ramia Santhu and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1930Mad264
AppellantSomalinga L. Rengier and ors.
RespondentRamia Santhu and anr.
Cases ReferredIn Rangaswamy Patrudu v. Appaswamy
Excerpt:
.....mortgage. 259. 5. in the face of these clear authorities in favour of the maintainability of the present suit, we fail to appreciate the strenuous contention of the learned advocate for the appellants, which, if we understand him aright, wipes off the distinction between the same right claimed as constituting the cause of action but sought to be enforced on different grounds of title or different modes of establishing it in more than one suit, and the case where the right claimed in one suit is different from that claimed in another suit, or in other words, where the causes of action are different and the plaintiff in both the suits does not litigate under the same title within the meaning of section 11, civil p. the present case is in our opinion clearly governed by the aforesaid..........in favour of defendant 1 in november 1885. defendant 1 and his wife have been in possession of the suit properties since 1885. on the strength of a subsequent hypothecation deed, of 1894 executed by the plaintiff's grandfather in favour of defendant 5 (ex. h) she filed o.s. no. 583 of 1899 and after some contest obtained a decree in her favour. it is admitted that decree debt has been discharged. in his deposition given in that suit in 1900, the present defendant 1 admitted that he was in occupation of plots a and b on othi right for rs. 300 (ex. n). having been in enjoyment of the property as a mortgagee in lieu of interest due on rs. 300 for a period of over 12 years, defendant 1 has acquired a possessory mortgage right by prescription after the lapse of 12 years. on the basis of the.....
Judgment:

Sundaram Chetty, J.

1. This second appeal has arisen out of a suit brought by the plaintiff (respondent 1) for redemption of the plaint-mentioned othi on payment of a sum of Rs. 300 to defendant 1 and for recovery of possession of the plots marked A and B on redeeming the said mortgage. The facts of this case are set forth clearly in the judgment of the lower appellate Court. The usufructuary mortgage sought to be redeemed in this case has arisen in the following circumstances: In 1885 the plaintiff's deceased grandfather Lakshmana Ayyar received a sum of Rs. 300 from defendant 1 for the purpose of constructing a house on the site maked A and permitted him to occupy the said building and also the terraced room B in lieu of interest due on the sum of Rs. 300. There was thus an oral othi in favour of defendant 1 in November 1885. Defendant 1 and his wife have been in possession of the suit properties since 1885. On the strength of a subsequent Hypothecation deed, of 1894 executed by the plaintiff's grandfather in favour of defendant 5 (Ex. H) she filed O.S. No. 583 of 1899 and after some contest obtained a decree in her favour. It is admitted that decree debt has been discharged. In his deposition given in that suit in 1900, the present defendant 1 admitted that he was in occupation of plots A and B on othi right for Rs. 300 (Ex. N). Having been in enjoyment of the property as a mortgagee in lieu of interest due on Rs. 300 for a period of over 12 years, defendant 1 has acquired a possessory mortgage right by prescription after the lapse of 12 years. On the basis of the creation of a prescriptive othi right in defendant 1 by adverse possession, the present suit is filed by the plaintiff for redeeming that mortgage and recovering possession of the suit properties. In O.S. No. 63 of 1915 on the file of the District Munsif's Court, Madura, the present plaintiff sued to redeem the oral othi of 1885 and recover possession of the properties: vide Ex. D. That suit was transferred to the file of the Additional District Munsif of Madura and was numbered as O.S. No. 177 of 1915. Though the first Court granted a decree for redemption holding the oral othi to be true, the first appellate Court reversed that decree and dismissed the suit on the ground that the oral mortgage for Rs. 300 was invalid and therefore incapable of proof (Ex. F.). A second appeal was preferred to the High Court and it was argued that, though the oral othi sued on would not entitle the plaintiff to a redemption decree, as it was invalid, a decree could at least be given for redemption on the footing of an othi right acquired by defendant 1 by prescription. The High Court, however, disallowed that contention, pointing out that the othi right created by prescription in favour of defendant 1 was not referred to in the plaint and was not the mortgage which the plaintiff actually sued to redeem. The second appeal was accordingly dismissed; but the High Court said that if any other othi relationship between the plaintiff and defendants had been created by prescription, he could sue again for redemption alleging it: vide Ex. G. The present suit has thus been brought for redeeming the aforesaid prescriptive othi, which defendant 1 has acquired under the statute of limitation.

2. The main contention put forward on the defendants' side is, that the present suit is barred as res judicata by reason of the decision in the former suit, namely, O.S. No. 63 of 1915. Reliance is placed on Section 11, Expln. 4, Civil P.C., and also Order 2, Rule 2 in support of the plea that the present suit is barred. Both the lower Courts have held that there is no such bar to the present suit and gave a decree in plaintiff's favour for possession of the suit properties. The same contention is now pressed in this Court by the learned advocate for the appellant.

3. There is no doubt that the former suit was based solely on the oral othi of 1885 and it was dismissed on the ground that the oral mortgage was invalid and incapable of proof. Defendant 1, however, continued to be in possession under an invalid or void mortgage and the quality and extent of the right claimed by him by such possession depended upon the claim accompanying it and upon the nature of animus possidendi. Having been in enjoyment of the properties adverse to full ownership, in the capacity of an othidar for over the statutory period, he should be held to have acquired a limited interest in the properties, to the extent which he prescribed for, namely, a possessory mortgagee's right for Rs. 300. This principle has been clearly laid down in Gopala Dasu v. Rami A.I.R. 1921 Mad. 410. To the extent of the limited right in immovable property acquired by another by prescription, there is an extinguishment in the title of the full owner and it may not be quite correct to say that there was any statutory transfer of that limited interest in favour of the person who prescribed for it. A mortgage is ordinarily created by a contract and as such it is an act of parties. But such a mortgage right, as for instance, the interest of a mortgagee in possession, may also be acquired by prescription, and when so acquired, after the completion of the enjoyment for the statutory period, he would just be in the position of a usufructuary mortgagee entitled to hold the properties until that mortgage is redeemed by the owner. In this view, we are of opinion that the prescriptive othi sought to be redeemed in the present suit is different from the oral othi of 1885 which was sued on in the former suit and held to be invalid and incapable of proof. The question therefore is whether the dismissal of the former suit brought to redeem an invalid mortgage of 1885 is really a bar to the present suit in which a different mortgage, which subsequently sprang into existence by the operation of the statute of limitation, is sought to be redeemed.

4. The facts of the present case seem to be on all fours with the facts of the case in Ramaswami Ayyar v. Vythinatha Ayyar [1903] 26 Mad. 760. In that case, the first suit was brought for the redemption of a mortgage of 1856. The defendants denied the truth of that mortgage setting up another mortgage of 1853 for a portion of the suit properties. That suit was dismissed on the ground that the mortgage sued on was not proved and was in fact fictitious. In the second appeal preferred to the High Court, it was urged that a decree might be given for redemption at least on the footing of the mortgage of 1853 set up by the defendants; but the High Court declined to grant such relief, one of the reasons for the refusal being, that the plaintiff not having sued in the alternative on that mortgage, no issue could be raised in respect of it in that suit. Thereupon, a second suit was brought for redeeming the mortgage of 1853, which was set up by the defendants in the previous suit. The plea of res judicata and the bar under Section 43 of the old Civil P.C., were raised. There is an exhaustive discussion of the case law in that decision and the real test according to the opinion of the learned Judges is, whether the cause of action or transaction, on which the two suits are based is the same, and not whether the transaction is sought to be established indifferent modes or by different means. It is distinctly pointed out that a plaintiff is bound to bring before the Court all the grounds of attack available to him with reference to the title which is made the ground of action, but he is not bound to exhaust in one suit all the different causes of action which he may have at the date of that suit in respect of the property. If the plaintiff who sought to redeem a specific mortgage failed in that suit, because the mortgage was not proved, he was not thereby precluded from seeking to redeem the same property from another specific mortgage. That this is settled law, so far as this Presidency is concerned, is clear from the Full Bench decision in Thirikaikat Madathil Raman v. T. Krishnan Nair [1906] 29 Mad. 153, which followed the rulings in Ramaswami Iyer v. Vythinatha Ayyar [1903] 26 Mad. 760, Veeranna Pillai v. Muthukumara Asari [1904] 27 Mad. 102 and overruled the decision in Rangasami Pillai v. Krishna Pillai' [1899] 22 Mad. 259.

5. In the face of these clear authorities in favour of the maintainability of the present suit, we fail to appreciate the strenuous contention of the learned advocate for the appellants, which, if we understand him aright, wipes off the distinction between the same right claimed as constituting the cause of action but sought to be enforced on different grounds of title or different modes of establishing it in more than one suit, and the case where the right claimed in one suit is different from that claimed in another suit, or in other words, where the causes of action are different and the plaintiff in both the suits does not litigate under the same title within the meaning of Section 11, Civil P.C. Unless it is shown that in both the suits the plaintiff is litigating under the same title (which is one of the conditions for the bar of res judicata as laid down in Section 11) it would be of no avail to the appellants to merely show that this is a matter which might and ought to have been the ground of attack in the former suit. Order 2. Rule 2, Civil P.C., does not oblige a plaintiff to combine in one suit all the causes of action which he may have in respect of the subject matter of the suit, and Ex. 4 to Section 11, Civil P.C. cannot be given effect to bar a suit, unless all the requisite conditions laid down in the body of the section are also fulfilled. In Muhammad Rowther v. Abdul Rahaman Rowther A.I.R. 1923 Mad. 257 (of 46 Mad.) four propositions have been laid down by Ramesam, J., as deducible from an analysis of the decisions cited in that case. The second proposition is formulated thus:

Where the first suit was to redeem one mortgage it does not bar a suit to redeem a mortgage of a different date, though the property sought to be redeemed and the principal amount of the mortgage are identical.

6. The decisions in Ramasami Ayyar v. Vythinatha Ayyar [1903] 26 Mad. 760, Veeranna Pillai v. Huthukumara Asari [1904] 27 Mad. 102 and Thrikakiat Madathil Raman v. T. Krishnan Nair [1906] 29 Mad. 153, are cited as authorities for this proposition. The present case is in our opinion clearly governed by the aforesaid rulings.

7. The cases cited by the learned advocate for the appellants, namely, Woomatara Debia v. Unnapoorna Dassee 11 B.L.R. 158, Kameshwar Pershad v. Rajkumari Ruttan Roer [1893] 20 Cal. 79, Moosa Goolam Ariff v. Ebrahim Goolam Ariff [1913] 40 Cal. 1, Ramiah v. Lakshmi Narayanan A.I.R. 1926 Mad. 234 and Mahomed Ibrahim Hoosain Khan v. Ambika Pershad Singh [1912] 39 Cal. 527, have really no application to the present case. The scope of the decisions in Woomatara Debia v. Unnapoorna Dassee 11 B.L.R. 158 and Kameswar Pershad v. Rajkumari Ruttan Koer [1893] 20 Cal. 79 has been clearly explained in Ramasamy Ayyar v. Vythinatha Ayyar [1903] 26 Mad. 760. In Rangaswamy Patrudu v. Appaswamy [1916] 1 M.W.N. 286, it has been held that where the plaintiff did not set up the title which he could have brought forward as an alternative basis of his claim on the last occasion, he could not be allowed to litigate it in a second suit. This principle cannot be extended to the present case, inasmuch as the right claimed in this suit is the right to free the property from a specific mortgage on redeeming it, whereas in the former suit it was a different right in respect of a different mortgage which was sought to be redeemed. We are therefore of opinion, that the present suit is barred neither under Section 11, nor under Order 2, Rule 2, Civil P.C.

8. The plaintiff having established his right to redeem the plaint-mentioned mortgage, the lower Courts have, however, freed, him from the liability to pay Rs. 300 to defendant 1 for the redemption of the mortgage, on the ground that defendant 1 disclaimed the mortgage right and disowned any interest in the suit properties, with a view to bolster up the contention of his wife (defendant 5) that she acquired an absolute title to the suit properties by adverse possession. Inasmuch as the plaintiff's suit is for redemption of the mortgage which is found to be true and there is the admitted liability of the plaintiff to pay Rs. 300 to defendant 1, we do not think that the plaintiff should be freed from that obligation on account of the false denial of defendant 1. We think that the decree for possession given in favour of the plaintiff should be made subject to the payment of Rs. 300 by him to defendant 1 by way of redeeming the plaint mentioned mortgage.

9. In the result, the decree of the lower appellate Court is confirmed with this modification, namely that if the plaintiff should pay Rs. 300 to defendant 1 or into Court to the credit of defendant 1 for redemption of the plaint mortgage within four months from this date, the plaintiff should be put in possession of the suit properties and if such payment is not made within the time fixed the suit properties will be sold for the payment of the amount due to defendant 1. The appellants will pay one-half of the costs of respondent I in this second appeal.


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