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Sayyapureddi Abbayya Dhora Alias Appan Dhora and ors. Vs. Sayam Appanna Dhora and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in123Ind.Cas.195
AppellantSayyapureddi Abbayya Dhora Alias Appan Dhora and ors.
RespondentSayam Appanna Dhora and ors.
Cases ReferredVarada Pillai v. Jeevarathnammal
Excerpt:
limitation act (ix of 1908), schedule i, article 144 - adverse possession--agreement to execute usufructuary mortgage--possession for over 12 years under agreement, effect of. - .....the expiry of 12 years, and that he could not in such circumstances claim to be the absolute owner of the property. that position seems to be clear also from the decision of the privy council in varada pillai v. jeevarathnammal 53 ind. cas. 901 : 43 m. 244 : (1929) m.w.n. 724 : 10 l.w. 679 : 24 c.w.n. 346 : 18 a.l.j. 274 : 2 u.p.l.r.p.c. 64 : 22 bom.l.r. 444 : 46 i.a. 285 : 38 m.l.j. 313 (p.c.). it being thus clear that the effect of 12 years possession in such circumstances will be only to create at the end of 12 years such valid title as mortgagee, which he would have had, had there been a duly registered document as contemplated by the parties, the plea that the suit is barred by limitation could not, in the circumstances, be sustained. finding3 regarding the agreement of 1.893 and.....
Judgment:

Anantkrishna Iyer, J.

1. In this case, the learned Advocates who appeared for the appellants and the respondents represented to me that appellants Nos. 1, 2 and 3 have compromised the matter which is the subject of this second appeal with the respondents and that so far as the said appellants Nos. 1, 2 and 3 are concerned they withdraw the appeal. The second appeal will accordingly be dismissed so far as appellants Nos. 1, 2 and 3 are concerned by reason of that agreement without floats. I have to proceed with the second appeal in so far as the other appellants are concerned.

2. The original suit was instituted by two plaintiffs, of whom the 2nd plaintiff is the brother's son of the 1st plaintiff, to redeem a usufructuary mortgage outstanding in respect of the suit properties. The plaintiffs' case was that on the 19th of August, 1893, the 1st plaintiff and the late Ramamurty Dhora, who was the paternal uncle's grandson of the 1st plaintiff, borrowed from the 1st defendant Re. 800 and executed on a properly stamped paper an agreement stipulating that a usufructuary mortgage deed will be executed and registered. The defendant was put in possession of the property as soon as he paid Rs. 800 to these two persons. The plaint proceeded to state further that subsequently a portion of the mortgage amount, namely, Rs. 291, was repaid to the mortgagees on the 11th of May, 1907, and that Ex. F was executed by the mortgagees in favour of the 1st plaintiff agreeing to credit this amount of Rs. 291 towards the mortgage amount. The plaint finally stated that, when asked to receive the balance of money and to surrender possession of the properties, the defendants did not do so: and consequently, the present suit was brought to redeem the property on payment of the amount due under the mortgage.

3. The defendants pleaded that the properties were their own and denied the agreement, They also denied Ex. F, which evidences part payment of the sum of Rs. 291. Both the lower Courts held that the defendants have not proved that they have any title to the properties other than the title derived by them by reason of having got possession from the plaintiff's ancestors as mentioned above, They also find that Ex. F is a genuine document and that the same was executed by the mortgagees to the 1st plaintiff. On these findings of fact, the only point of law available for the learned Advocate for the appellants to argue in this second appeal is this. Since the mortgagors did not execute a mortgage document, duly stamped and registered, evidencing this transaction of usufructuary mortgage in respect of Rs. 800, it cannot be said that a mere agreement to mortgage creates any interest in the property, and consequently their admitted possession from 1893 for a period of much more than 12 years has enabled them to acquire an absolute title to the property. I am unable to accept this contention. The mere fact that a person is in possession for more than 12 years does not, when there is the absence of an animus on his part to claim absolute title in the property, clothe him with absolute right at the end of 12 years, when the animus to be in possession only as usufructuary mortgagee for Rs. 800 is proved. A limited interest in the property could be acquired by adverse possession as well as absolute interest, and the quantum of interest acquired depends upon the animus with which possession is held by the person in actual possession of the property. This is made quite clear by several decisions of this Court. It is only necessary to quote the decisions in Ramalakshamma v. Ramanna 9 M. 482 : 13 I.A. 147 : 4 Sar.P.C.J. 728 and Madhava v. Narayana 9 M. 244 : 10 Ind. Jur. 61, In a case where it was found that there was an agreement to execute a usufructuary mortgage and that it was under that agreement that the defendant came into possession then, though the usufructuary mortgage-deed contemplated had not been executed, it must be taken that the defendant had been in possession only as a usufructuary mortgagee for the amount of the' loan advanced. No doubt, in the absence of a registered mortgage deed be would not have acquired an indefeasible title as such usufructuary mortgagee before the expiry of 12 years, because a registered document is required in such a case by the Transfer of Property Act to create present legal title. But the effect of possession for 12 years in such a case is to make that title of his indefeasible, which would have accrued to him if a registered mortgage-deed had been executed in the first instance. In the case in Sontyana Gopala Dasee v. Inaputalapula Rami 64 Ind. Cas. 328 : 44 M. 946 : (1921) M.W.N. 385 : 41 M.L.J. 194 : 13 L.W. 685 the defendant was in possession under a mortgage for more than 12 years. Ayling and Odgers, JJ., held that the effect of possession for 12 years was to create a valid mortgage right in the defendant, and that the defendant by reason of such possession for 12 years had not acquired absolute title in the sense that a suit would not be maintainable to redeem him. A similar case arose in Nadepena Appamma v. Saripilli Chinnanadu 79 Ind. Cas. 510 : 45 M.L.J. 667 : (1923) M.W.N. 825 : 33 M.L.T. 146 : 19 L.W. 27 : A.I.R 1924 Mad. 292 : 47 M. 203. There an unregistered usufructuary mortgage was executed. The defendant got into possession; but no registered document as required by law having been executed, though the amount of the mortgage was above Rs. 100, the question arose as to what would be the effect of possession for more than 12 years. Ramesam, J., agreed with Venkatasubba Rao. J., that the effect of such possession would be only to create a valid usufructuary mortgage right in the mortgagee after the expiry of 12 years, and that he could not in such circumstances claim to be the absolute owner of the property. That position seems to be clear also from the decision of the Privy Council in Varada Pillai v. Jeevarathnammal 53 Ind. Cas. 901 : 43 M. 244 : (1929) M.W.N. 724 : 10 L.W. 679 : 24 C.W.N. 346 : 18 A.L.J. 274 : 2 U.P.L.R.P.C. 64 : 22 Bom.L.R. 444 : 46 I.A. 285 : 38 M.L.J. 313 (P.C.). It being thus clear that the effect of 12 years possession in such circumstances will be only to create at the end of 12 years such valid title as mortgagee, which he would have had, had there been a duly registered document as contemplated by the parties, the plea that the suit is barred by limitation could not, in the circumstances, be sustained. Finding3 regarding the agreement of 1.893 and the genuineness of Ex. F being questions of fast, they could not be reopened in second appeal. The result is that the second appeal, so far as appellants Nos. 4, 5 and 6 are concerned, will be dismissed on the merits, with costs.


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