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(Vaddadi) Butchiraju and ors. Vs. Doddi Seetharamayya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1926Mad377
Appellant(Vaddadi) Butchiraju and ors.
RespondentDoddi Seetharamayya and ors.
Cases ReferredSnbbraya Chetty v. Nachiar Ammal
Excerpt:
- .....nachiar ammal [1918] 7 l.w. 403. but the learned subordinate judge has refused to apply this principle on the ground that by the time the claim for redemption matured, i.e., on 3-7-1922, the defendants had prescribed for a vendees' title on foot of their sale-deed, ex. i, of the date 5-4-1910. i am mrable to accede to this view. the sale being void, and possession having commenced under the mortgage deed, defendants prescribed only for a mortgagee's right even after the sale-deed came into existence. it has never been held that they could prescribe for mortgagee's right under ex. ii and for a vendee's right under ex. i. such being the case there can be no question of their having fully prescribed for a vendee's, right on 3-7-1922.5. i, therefore, allow the appeal and setting aside the.....
Judgment:

Viswanatha Sastri, J.

1. The suit was for the recovery of lands which originally formed karnam service inam, and which has first been mortgaged and subsequently sold by the karnam to Defendants 1 and 2. The 3rd plaintiff is the karnam and Plaintiffs 1 and 2 are his sons. The mortgage (usufructuary) was under Exhibit II on 3-7-1907 ; and the sale was under Exhibit I on 5-4-1910. The inam was enfranchised in April 1911. The District Munsiff held that the alienations having been made before enfranchisement were invalid, that the defendants had, on the date of the suit (3-7-1920) prescribed for a mortgagee's interest ; and that plaintiffs were entitled to possession on payment of Rs. 700, Rs. 800 and Rs. 1,000 or ,Rs. 1,600. Both sides appealed, the appeal by plaintiffs relating to their liability to pay Rs. 1,600 before getting possession. The learned Subordinate Judge held that defendants had prescribed only for a mortgagee's interest ; and that plaintiffs were entitled only to redem as per the terms of Exhibit II. And for the reason, that Exhibit II allowed 15 years for payment, he held that the suit filed on 3-6-1920 was premature, and, allowing the appeal, dismissed the suit.

2. It was contended before me that the sale was in discharge of the mortgage; that on the date of the sale the mortgage had become extinguished ; that consequently defendants could have prescribed only for vendees' interest; and that as the suit was filed within 12 years from the date of the sale, it was not premature.

3. It was held in Sontyana Gopala Dasu v. Inapatalupula Rami [1921] 44 Mad. 946 that where unenfranchised land is mortgaged and the mortgagee remains in possession for over 12 years, he acquires by prescription the right of a usufructuary mortgagee and is liable to be redeemed as such. The question is whether the taking of a sale in discharge of the mortgage alters the nature of the possession of the mortgagee. I am of opinion that the original character of the possession as mortgagee is not changed by an assertion of an absolute purchase of the property when the alleged purchase is not valid : see Bhagwant Govind v. Kondi [1890] 14 Bom. 279. Byari v. Puttanna [1891] 14 Mad. 38.

4. The rights of the parties have therefore to be considered on the basis of Ex. II. Under it the sum secured was payable in 15 years from its date, and so the right to redeem accrued only on 3-7-1922. It was urged before me that the Court could take into consideration the circumstances prevailing on the date of the decree and decide accordingly. In support of this contention reliance, was placed on Baghavachariar v. Srinivasa Baghavachariar [1916] 40 Mad. 308 and Duraiswamy Pillai v. Chinniah Goundan : AIR1918Mad272 . These, and other cases have been referred to by the learned Subordinate Judge and there can be no doubt, as observed by him, that although a sum of money has not become payable on the date of the suit, but became payable since, the Court can pass a decree for its recovery: see Snbbraya Chetty v. Nachiar Ammal [1918] 7 L.W. 403. But the learned Subordinate Judge has refused to apply this principle on the ground that by the time the claim for redemption matured, i.e., on 3-7-1922, the defendants had prescribed for a vendees' title on foot of their sale-deed, Ex. I, of the date 5-4-1910. I am mrable to accede to this view. The sale being void, and possession having commenced under the mortgage deed, defendants prescribed only for a mortgagee's right even after the sale-deed came into existence. It has never been held that they could prescribe for mortgagee's right under Ex. II and for a vendee's right under Ex. I. Such being the case there can be no question of their having fully prescribed for a vendee's, right on 3-7-1922.

5. I, therefore, allow the appeal and setting aside the decree of the lower appellate Court, restore the decree of the District Munsiff with costs both here and in the lower appellate Court.


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