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Amina Bi and ors. Vs. Khamurunnisa - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1973)2MLJ314
AppellantAmina Bi and ors.
RespondentKhamurunnisa
Cases ReferredIn Ananthan Potti v. Krishnna Pillai A.I.R.
Excerpt:
- .....second appeal arises put of o.s. no. 347 of 1965 filed for declaring the plaintiff's title to the suit property and for possession. the above suit was tried by the trial court along with o.s. no. 612 of 1965 filed by the first defendant in o.s. no. 347 of 1965 for redemption of a simple mortgage executed by the plaintiff to secure a loan of rs. 1,000 on the security of the house and ground covered by o.s. no. 347 of 1965. the two suits were heard together. i shall now take up he allegations in o.s. no. 347 of 1965 out of which the above second appeal has arisen. the plaintiff claims title under a sale deed dated 3rd april, 1964 executed by one fatima bi in her favour and the allegation in the plaint is that the first defendant was occupying the 'b' schedule property which is a portion.....
Judgment:

V.V. Raghavan, J.

1. The defendants are the appellants. The above second appeal arises put of O.S. No. 347 of 1965 filed for declaring the plaintiff's title to the suit property and for possession. The above suit was tried by the trial Court along with O.S. No. 612 of 1965 filed by the first defendant in O.S. No. 347 of 1965 for redemption of a simple mortgage executed by the plaintiff to secure a loan of Rs. 1,000 on the security of the house and ground covered by O.S. No. 347 of 1965. The two suits were heard together. I shall now take up he allegations in O.S. No. 347 of 1965 out of which the above second appeal has arisen. The plaintiff claims title under a sale deed dated 3rd April, 1964 executed by one Fatima Bi in her favour and the allegation in the plaint is that the first defendant was occupying the 'B' schedule property which is a portion of the 'A' schedule property as a tenant under her vendor (Fatima Bi) from 1961 on a monthly rent of Rs. 10. that the said first defendant failed to pay the rent after her purchase and further denied her title and set up title in herself to the entire 'A' schedule property, that she was called upon to quit by notice dated 23rd September, 1964 (Exhibit A-39), 'that thereupon the plaintiff sent a further notice dated 25th March, 1965 terminating the tenancy of the first defendant with the end of April, 1965, and that the said notice was returned refused and the present suit was filed for declaration of title and recovery of possession of the 'B' schedule property. She did not seek any relief in respect of the Bother portions of the 'A' schedule property as the tenant ;in occupation of the said portion had attorned to her after her purchase. Originally 'A' schedule property belonged to one Jinath Bi and others and on 14th July, 1897 (Exhibit A-4) the said owners executed a possessory mortgage in favour of Mohammed Jabbar Saheb and jabbar Saheb was in possession from 1897 onwards,-till he made a gift of it to his wife Fatima Bi in lieu of her dower debt in 1928 and Fatima Bi entered into possession of the said property and continued in possession till she sold the same to the plaintiff on 3rd March, 1964 (Exhibit A-1). The further case of the plaintiff is that the entire property was held by one Abdul Rahim as a tenant under Faitima Bi from January, 1954 till his death in 1961 and that the first defendant is the sister of the said Abdul Rahim and was living with her brother during the tenancy period and after the death of Abdul Rahim the first defendant is said to have held the 'B' schedule property on lease from month to month under Fatima Bi on a monthly rent of Rs. 10 and defendant 2 and 3 are the grand-daughter and grand daughter's husband of the first defendant who were impleaded for effective adjudication of the matters in dispute. The present suit as filed for the reliefs mentioned above.

2. The Defence to the Suit is that the property did not belong to Jabbar Saheb or Fatima Bi that Abdul Rahim was not the tenant of the property and that the fist defendant was not living with Abdul Rahim nor did she become the tenant of the 'B' schedule property under Fatima Bi On the other hand, their case is that the 'A' schedule property belonged to one Hussain Main, the father-in-law of the first defendant, that the first defendant's husband got the property on his father's death and that on the death of her husband on 29th October, 1940 the first defendant entered into possession of the property and has continued in possession throughout, that Habibur Rahman was not a sub-tenant under Abdul Rahim and that he was colluding with the plaintiff and that he could not validly attorn to the plaintiff and that the attornment in fact did not take place.

3. The trial Court held that Mohammed Jaffar Saheb had title to the property as mortgagee and the property belonged to him for all purposes as against the 'third parties. The trial Court further held that the gift by Mohammed Jaffar to Fatima Bi in 1928 in lieu of her dower debt is true and as the defendants failed to prove their title to the 'A' schedule property, the trial Court did not record a finding on issue No. 3 viz., whether Fatima Bi had completed title to plaint 'A' schedule property by prescription. The next finding of the learned Judge was that the sale by Fatima Bi to the plaintiff is true and that the plaintiff has title to the suit property including the 'B' Schedule property. The lease of the 'B' schedule property by Fatima Bi to the first defendant was held not to be true and the first defendant was never a tenant under Fatima Bi. In the result, the suit was decreed as prayed for declaring her right to hold and possess 'B' schedule property by virtue of the rights derived from the us fruoctuary mortgage deed dated 14th July, 1897 and the agreement of sale dated 8th April, 1908 in favour of Mohammed Jaffar Saheb and it also directed the defendants to put the plaintiff in possession of the said 'B' schedule property forthwith

4. We are not concerned with the other Suit which ended in preliminary(decree being passed in favour of the plaintiff.

5. The defendants filed A.S. No. 207 of 1969 to the Court of the Subordinate Judge of Chingleput v. The learned Judge confirmed the decree of the trial Court and in doing so held that the numerous documents filed established the title of Fatima Bi as well as possession. In dealing with the first defendant's claim to the property as her own, the appellate Judge held that there was no question of acquisition of title by adverse possession. To acquire a title by adverse possession, the first defendant must have been in possession of the property to the knowledge of the true owner and in the absence of the true Owner it cannot be said that the first defendant was adversely in possession of the suit property and acquired title there to. The defendants have filed. the above second appeal.

6. The partion deed Exhibit A-10 dated 15th February, 1883 where under the 'A' schedule property is shown as jointly belonging to the share of Jainath Bi and her minor sons Narudeen Davood and Ahmed under patta No. 173 in Sathangadu Village. On 14th July, 1897 the usufructuary mortgage (Exhibit A-4) was executed in favour of Mohammed Jaffar Sahib by Jainath Bi and her 3 sons referred to above to secure a loan of Rs. 750 and the mortgagee was to hold and enjoy the land till the principal sum of Rs. 750 was prepaid. On 8th April, 1908 an agreement (Exhibit A-5) was executed between Jainath Bi and her son to the mortgagee to sill the property to him for Rs. 1,500 out of which Rs. 750 was to discharge Exhibit A-4. mortgage of which Rs. 750 which was stated to have been received and the mortgage to discharge Rs. 500 paid on the date of the agreement and Rs. 250 to be received at the time of the sale. But it appeals that no sale deed was executed and the position is that Mohammad Jaffar Saheb had possessory title as usufructuary mortgagee under which he had yet to pay Rs. 250 to get an absolute sale.

7. The learned Counsel for the appellants, however, contends that the oral gift as stated in Exhibit A-2 is inadmissible in evidence. Section 129 of the Transfer of Property Act saves Mohammedan gifts from the application of the provisions of Chapter VII of the Transfer of Property Act. The result is that the oral gift made by Mohammed Jaffar in favour of his wife Fatima Bi in lieu of her dower debt is valid.

8. The next contention of the learned Counsel is that the rent deeds Exhibits A-6 to A-9 executed by the tenants in favour of Fatima Bi are inadmissible in evidence for want of registration. Even so the said documents are admissible for the purpose of showing the nature of possession held by persons under Fatima Bi. Those documents are admissible to show that Fatima Bi is the landlord and the tenants, who executed the rent deeds, are the tenants holding under her. The appellate Court found that Exhibits P-6 to P-9 are true and valid documents. I am therefore of opinion that Exhibits A-6 to A-9 may be perused to show the nature Of possession. The learned Counsel next attacked the truth and validity of Exhibit A-38, which is a letter by Amina Bi to Fatima Bi. The appellate Court has dealt with this letter and found that Amina Bi affixed her thumb impression to Exhibit A-38 and attorned to the landlord. The position now is that the plaintiff has purchased the interests of Fatima Bi, viz., the mortgagee's interests under the possessory mortgage executed by the owners in favour of Fatima Bi's husband. The appellate Court has dealt with the claim of the defendant, who put forward a title to the suit property. D.W. 2 claimed to have been a tenant of a portion of the premises under Amina Bi (first defendant) from 2nd March, 1953 to 28th June, 1955. But the appellate Court rejected the evidence of D.W. 2 and did not accept the defence version. The first defendant has no title deed and it is not shown that her husband had any title to the suit property. The first defendant claims title to the property as her own and not through adverse possession and therefore the question of acquisition of title by adverse possession of the first defendant does not arise. The learned Judge rightly rejected the defendant's case regarding possession.

9. The plaintiff has also not established title to the property. But what she established is that she has acquired the rights of the usufructuary mortgagee under the mortgage of 1897 even if the time for redemption had expired and her continuance after the period can only be as a trespasser. The continuance in possession of a mortgagee after the period of redemption cannot necessarily be adverse to that of the owner. The question is always a question of animus or the intention of the parties concerned. In Gobind Ram v. Mt. Ram Koer and Ors. : AIR1924All522 , it is stated that mere continuance in possession of the mortgagee after the mortgage money is paid out of the usufruct or by the mortgagor, does not make such possession of the mortgagee, adverse to the mortgagor. The only declaration that the plaintiff will be entitled to in this suit will be a declaration of the plaintiff's title and possession of the suit property subject to the rights of the rightful owner. In Ananthan Potti v. Krishnna Pillai A.I.R. 1957 Trav. Co. 145, the circumstances under which the possession of a mortgagee after full satisfaction of the debt would be adverse to the mortgagor has been considered. Their Lordships held that the question whether the possession of the mortgagee after the mortgage debt had been satisfied is adverse to the mortgagor or not, is always a question of animus or intention of the parties concerned and that the whole of the circumstances has to be considered only to find out whether the mortgagees in the case continued in possession as mortgagees or as owners in respect of the property. It is unnecessary to pursue this matter, as the mortgagors are not in the picture. Therefore, the rights inter se between the mortgagor and the mortgagee need not be considered here and in this litigation declaration of the plaintiffs title and possession can be given subject to the rights of the mortgagor to question the same in appropriate proceedings.

10. The second appeal fails and is dismissed. There will be no order as to costs. No leave.


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