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P. Venkatasubbiah Chetty and ors. Vs. the Jumma Mosque, by Its Muttavalli C. Khadar Mohideen Sahib and H. Abdul Aziz Sahib and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1941Mad666; (1941)1MLJ754
AppellantP. Venkatasubbiah Chetty and ors.
RespondentThe Jumma Mosque, by Its Muttavalli C. Khadar Mohideen Sahib and H. Abdul Aziz Sahib and anr.
Cases ReferredRamasami Sastrigal v. Samiappanaykan I.L.R.
Excerpt:
- - 5. it is well settled that a statement or an admission made by a person cannot affect a title previously created by him. the mortgagor failed to redeem. this being the case the cross-objections also fail and must be dismissed......of the jumma masjid in cutchery road, mylapore, madras for the redemption of four mortgages. the mortgaged properties consisted of two blocks. the first block was mortgaged by a deed executed on the 14th february, 1873. a part of the second block was mortgaged on the 9th february, 1850, another part on the 28th january, 1860, and the remainder of the block on the 19th december, 1864, the city civil court judge held that the trustees had not proved that the properties belonged to the mosque. he also held that the suit was barred by the law of limitation in so far as it concerned the mortgage of the properties in the first block. the result was that the suit was dismissed with costs. the trustees appealed to this court and their appeal was heard by patanjali sastri, j., who disagreed.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. This is an appeal under Clause 15 of the Letters Patent. The suit out of which it arises was filed in the City Civil Court by the trustees of the Jumma Masjid in Cutchery Road, Mylapore, Madras for the redemption of four mortgages. The mortgaged properties consisted of two blocks. The first block was mortgaged by a deed executed on the 14th February, 1873. A part of the second block was mortgaged on the 9th February, 1850, another part on the 28th January, 1860, and the remainder of the block on the 19th December, 1864, The City Civil Court Judge held that the trustees had not proved that the properties belonged to the mosque. He also held that the suit was barred by the law of limitation in so far as it concerned the mortgage of the properties in the first block. The result was that the suit was dismissed with costs. The trustees appealed to this Court and their appeal was heard by Patanjali Sastri, J., who disagreed with the trial Court on the question of ownership and held that the trustees were entitled to redeem the properties comprised in the second block. With regard to the mortgage of the first block the learned Judge agreed with the trial Court that the law of limitation barred the trustees' claim. The first, second, third and fourth defendants, who are the successors in interest of the mortgagee of the properties comprised in the second block, have appealed against the finding of the learned Judge that the trustees are entitled to redeem. The trustees have filed cross-objections, challenging the decision of the learned Judge that the law of limitation has destroyed their right to redeem the mortgage of the first block.

2. All the mortgages were created by one Ghulam Hyder, who was the superintendent of the mosque at that time. In mortgaging the properties he held himself out to be the owner. In 1874 a suit was filed in this Court by one Hafiz Sadrool Islaam Khan on behalf of himself and other members of the Muhammadan community of Mylapore against Ghulam Hyder for a decree-removing him from the office of superintendent. It was alleged that he had wrongfully alienated properties belonging to the trust. This suit was compromised and the decree which was passed in accordance with the terms of the compromise declared that certain properties belonged to the mosque. The area of these properties was defined and it is admitted that within the area fall the properties now in suit. Another suit was filed in this Court in the year 1892, which also ended in a compromise and a further declaration that the properties with which the suit is concerned belonged to the mosque, but Ghulam Hyder was not a party to the second suit. His son was a party, but the suit as against him was withdrawn.

3. The question which the Court is called upon to decide with regard to the properties in the second block is whether there is evidence that the properties belong to the mosque, that is evidence which is admissible in a Court of law and sufficient for proof. Before the respondents can be allowed to redeem the mortgages they must, of course, show title. Owing to the lapse of time the respondents are not in a position to trace the history of the properties and they are driven to relying on the compromise and the decree which followed it in the suit filed in 1874. Patanjali Sastri, J., held that the decree passed in that suit was in itself sufficient for the respondents' purpose. He relied on the decision of this Court in The Secretary of State for India in Council v. Syed Ahmad Badsha : (1921)41MLJ223 . The appellants contend that the decree is not sufficient for the purpose of proving the respondents' title. They maintain that no admission made by the mortgagor after the mortgages had been created can bind them.

4. We are unable to agree with the learned Judge that The Secretary of State for India in Council v. Syed Ahmad Badsha : (1921)41MLJ223 , has application here. In that case a Full Bench of this Court held that a judgment in a suit which does not operate as res judicata can be used as a piece of evidence on the question of title. The suit was concerned with a claim to an office in a Muhammadan institution, and the question was in no way analogous to the question now under discussion.

5. It is well settled that a statement or an admission made by a person cannot affect a title previously created by him. To use the words of Lord Denman, C. J., in Doe v. Webber (1834) 1 Ad.E. 733 : 110 E.R. 1387, a person who has parted with his interest in property cannot divest the right of another claiming under him by any statement which he may choose to make. This principle has been accepted in India and there is nothing in the Indian Evidence Act which throws any doubt on the power of the Court to apply it. Basing his argument on this principle Mr. Bashyam Aiyangar, on behalf of the appellants, has contended that Ghulam Hyder's admission that the properties in suit belonged to the mosque must be ignored entirely. It would have to be ignored if the compromise decree in the suit of 1874 adversely affected the position of his clients, but that is not the case and the principle therefore does not apply.

6. There has been a great deal of discussion on the question whether the decree in the suit of 1874 amounts to an admission within the meaning of Section 18 or Section 19 of the Evidence Act, but it is unnecessary to decide whether either of these sections has any application. It may be taken for the purposes of this case that neither section applies, but this does not mean that the decree in the suit of 1874 cannot be admitted in evidence. We are of the opinion that the decree can be admitted in evidence under Section 32. Once it is admitted it is admitted for all purposes and we consider that it establishes the title of the mosque to the properties in suit. Sub-clause (3) of Section 32 read with the opening words of the section is to the effect that a statement made by a person who is dead is admissible in evidence when the statement is against his pecuniary or proprietary interest. Ghulam Hyder is dead and the decree is in effect a statement by him that these properties belong to the mosque, a statement which was against his proprietary interest. His statement cannot, however, affect the interests of the mortgagee or of the mortgagee's successors in interest, and therefore so far as they were concerned the decree must be taken to be merely an admission by Ghulam Hyder that the mosque was entitled to the equity of redemption in the property. But this is sufficient to entitle the respondents to succeed, as Ghulam Hyder knew the true position and there is no evidence in contradiction. This finding disposes of the appellants' case.

7. Turning now to the cross-objections the position is this. The mortgage of the 14th February, 1873, provided that unless it was redeemed within a period of two years the property should become the absolute property of the mortgagees, Meera Sahib and Ali Ibrahim. The mortgagor failed to redeem. Meera Sahib died before the 2nd February, 1880. On that date the son of Meera Sahib, who represented his deceased father, and Ali Ibrahim sold the property to one Nagayya Chetti. As the property had not been redeemed within the period allowed by the deed for redemption the vendors regarded themselves as the absolute owners. The appellants now stand in the shoes of Nagayya Chetti. The question is whether the deed of the 2nd February, 1880, amounts to a transfer of the property within the purview of Article 134 of the Limitation Act. If it does amount to a sale of the whole interest in the property, not merely a transfer of the mortgagees' interest, admittedly the article has application, and this is what Patanjali Sastri, J., has found.

8. In 1875 in Thumbusawmy Moodelly v. Hossain Rowthen the Privy Council held that a contract of mortgage by conditional sale could be enforced according to the letter under the law of India as it then stood and that the Madras and Bombay Courts in applying English rules had erred. This meant that the English maxim, once a mortgage always a mortgage, had no application in India. From the year 1858 the Courts in the Madras Presidency and from the year 1864 the Courts in the Bombay Presidency had applied the English law relating to mortgages, and the Privy Council recognized that what had been done could not be undone. It did not, however, definitely decide what courge should be adopted in future and in Ramasami Sastrigal v. Samiappanaykan I.L.R.(1881)Mad. 179 , this Court decided that the English rules of law with regard to mortgages should continue to apply to mortgages by conditional sale. Therefore it must be taken that when the mortgage of the 14th February, 1873, was executed the law in Madras regarded the deed as merely conferring a mortgagee's rights on Meera Sahib and Ali Ibrahim, and the condition that the property should become theirs unless the mortgage was redeemed within two years could not be enforced. That was also the position when the document of the 2nd February, 1880, was executed.

9. The question whether the son of Meera Sahib and Ali Ibrahim in fact conveyed a full title to Nagayya Chetti is not material. It has rightly been conceded by Mr. K. V. Krishnaswami Aiyar that even if the vendors were not in possession of a full title but purported to convey an absolute title to Nagayya Chetti the transaction would constitute a transfer within the meaning of Art, 134. We have examined the document with care and we agree that the learned Judge has rightly construed it as an instrument of sale and not as an assignment of the mortgagees' interest. This being the case the cross-objections also fail and must be dismissed.

10. The appellants will pay the costs of the appeal to the trustees of the mosque, and the trustees of the mosque will pay to the appellants out of the mosque funds the costs of the cross-objections.


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