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Vyapuri and anr. Vs. Sonamma Boi Ammani - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported inAIR1916Mad990(2); (1916)ILR39Mad811
AppellantVyapuri and anr.
RespondentSonamma Boi Ammani
Cases ReferredNandan Singh v. Jumman I.L.R.
Excerpt:
adverse possession - simple mortgage--dispossession of mortgagor after mortgage, not adverse to the mortgagee. - john wallis, c.j. 1. i should have been prepared to adopt the judgment of munro, j., in parthasarathy naicker v. lakskmana naieker i.l.r. (1912) mad. 231 which was followed in allahabad in nandan singh v. jumman i.l.r. (1912) all. 640 and approved by the full bench of that court in raj nath v. narain dass i.l.r. (1914) all. 567 and was itself in accordance with the calcutta decision in aimadarmandal v. makhan lal dey i.l.r. (1906) cal. 1015 if it were not that this last decision has been questioned in nand kumar dobey v. ajodhya sahu (1911) cri.l.j. 292 and not followed in bireshwar samanta v. priya sakhi debi 28 ind.cas. 917 where the opposite view taken by abdur rahim and ayling, jj., in an earlier case in this court--ramasami chetti v. poona padayachi i.l.r. (1913) mad. 97--was.....
Judgment:

John Wallis, C.J.

1. I should have been prepared to adopt the judgment of Munro, J., in Parthasarathy Naicker v. Lakskmana Naieker I.L.R. (1912) Mad. 231 which was followed in Allahabad in Nandan Singh v. Jumman I.L.R. (1912) All. 640 and approved by the Full Bench of that Court in Raj Nath v. Narain Dass I.L.R. (1914) All. 567 and was itself in accordance with the Calcutta decision in Aimadarmandal v. Makhan Lal Dey I.L.R. (1906) Cal. 1015 if it were not that this last decision has been questioned in Nand Kumar Dobey v. Ajodhya Sahu (1911) Cri.L.J. 292 and not followed in Bireshwar Samanta v. Priya Sakhi Debi 28 Ind.Cas. 917 where the opposite view taken by Abdur Rahim and Ayling, JJ., in an earlier case in this Court--Ramasami Chetti v. Poona Padayachi I.L.R. (1913) Mad. 97--was accepted as being in accordance with the decisions of the Privy Council in Vrannath Roy Chowdry v. Rookea Begum (1859) 7 M.I.A. 323 and Karan Singh v. Bakar Ali Khan I.L.R. (1883) All. 1 : 9 I.A. 99. Before dealing with these decisions I may say we have not been referred to any English authority for the position that a mortgagee whose right to possession has not accrued may be debarred from suing by possession adverse to his mortgagor commencing after the date of the mortgage. Under the Statute of 21 Jac. Ic. 16, what was barred was the right of entry or right of taking possession, and time did not begin to run until that right accrued, and then only when the possession of the occupier was adverse. So too under Sections 2 and 3 of the English Real Property Limitations Act, 1833, in suits by persons entitled to possession under an instrument, time only begins to run from the date whan the right to possession accrues. It is well settled that these are the sections applicable to a mortgagee Doe d. Boylanoe v. Lightfoot (1841) 8 M. & W. 553 : 151 E.R. 1158 though there are other provisions giving a fresh starting point from the date of part-payment. Under an ordinary English mortgage the mortgagee was entitled to possession at any time, and could bring ejectment against the mortgagor who only held at his pleasure--Ketch v. Hall (1779) 1 Dougl. 21 1 Sm. L.C. 511--but the possession so taken by him would be the onerous possession of a mortgagee accountable for the profits to the mortgagor; and it was held that on foreclosure a fresh right of action arises for possession as owner: Pugh v. Heath (1882) 7 A.C. 235. Under the English statutes it seems to me to be immaterial whether possession commencing after the date of the mortgage was or was not adverse to the mortgagor, and the recent decision In In re Nisbet and Potts' Contract (1906) L.R. 1 Ch. 386 is in accordance with this view.

2. In Bengal and Madras, outside the Presidency towns where the Act of James I was received, time under the Regulations ran from the accrual of the plaintiff's cause of action, and this in the case of immoveable property was held to accrue when the possession of the occupier became adverse.

3. In Prannath Roy Chowdry v. Rookea Begum (1859) 7 M.I.A. 323 which was governed by the Bengal Regulations, the main contention raised by Mr. Roundell Palmer for the appellant was that a suit for foreclosure instituted by his clients more than twelve years after the mortgage debt had become payable was not barred under the Bengal Limitation Regulations, because the disputes and litigation going on between the heirs of the mortgagor and third parties claiming as purchasers were a good cause for not suing earlier. In addition, however, to this contention, which was upheld by their Lordships and disposed of the suit, he argued further that there was no rule of law which creates an absolute possessory title in a twelve years' undisturbed possession even if that had been such. On the other side it was not contended that the respondentia who claimed under an alleged purchase from the mortgagor had been holding adversely to the mortgagee. The contention was that they had purchased subject to the mortgage and were entitled to redeem. Their Lordships' judgment must be read with reference to these contentions. The case was one of a mortgage by conditional sale, and their Lordships observed that if the mortgage deed had been allowed to take effect according to its tenor possession might be considered to have become adverse to the mortgagee-purchaser from the completion of the title, or as I understand it, from the time when the mortgagee was to become owner under the terms of the deed and entitled to possession as such. As however under the Bengal Regulations the conditional sale was to be treated as a mortgage, they held that the possession of persons in the position of the respondents whose case was that they had acquired and held the property subject to the mortgage was not, any more than in England, inconsistent with the mortgagee's title, or their possession adverse to the mortgagee. As regards the defences with which a mortgagee suing for possession after foreclosure might-be met by occupants other than the mortgagor, their Lordships say that he might be met by proof of a prior or a superior title, or by proof of want of title in himself, or that he has not perfected his title to possession.' By these last words I understand that the mortgagee must show that his own title to possession has accrued. Their Lordships certainly did not say that a mortgagee suing in the circumstances stated might be met by proof of possession adverse to his mortgagor commencing subsequently to the mortgage at a time when he himself had no right, to possession against the mortgagor or any one else.

4. Under the Indian Limitation Act of 1859, as under the English Real Property Limitations Act, 1833, there was no special provision for suits by mortgagees, but as regards suits to recover the mortgaged property they clearly came within the terms of Section I, Article 12, which allowed twelve years from the date of the cause of action for suits to recover immoveable property or any interest therein not otherwise provided for. Even suits by a mortgagee to enforce his rights by sale were held by this Court to come within this section in Chetti Gaundan v. Sundaram Pillai (1864) 2 M.H.C.R. 51; and the decisions of the Full Bench in Calcutta in Surwan Hossein v. Shahazadah Golam Mahomed (1868) 9 W.R. 170 and of the Privy Council in Juneswar Dass v. Mahabeer Singh (1876) I.L.R. 1 Cal. 163 (P.C.) were to the same effect. Dealing with a suit by a mortgagee governed by this section in Brojanath Koondoo Chowdry v. Khelut Chunder Ghose (1871) 14 M.I.A. 144, their Lordships observed, that 'where both things occur, possession by such a holder' (a holder claiming adversely) and the right of entry under the mortgage deed more than twelve years old, it was impossible to say that such a possession is not protected by the law of limitation.' In the case just mentioned the mortgagee himself had the right to take possession and had failed to exercise it for twelve years.

5. Under the Act of 1859, it was no doubt held in Calcutta by Bayley and Jackson, JJ., in Ram Coomar Sein v. Prosunno Coomar Sein (1864) W.R. 375 that; in a suit by a mortgagee for possession after foreclosure he might be met by proof of possession for twelve years adverse to the mortgagor, and the decision of their Lordships in Prannath Roy Chowdry v. Rookea Begum (1859) 7 M.I.A. 323 was cited in support of this view; but, as I have endeavoured to show, their Lordships laid down no such proposition in that case, and indeed their observations point the other way. Further I do not see how Ram Coomar Sein v. Prosunno Coomar Sein (1864) W.R. 375 is to be reconciled with the subsequent decision of the House of Lords in Pugh v. Heath (1882) 7 A.C. 235 already referred to, As regards Sheoumber Sahoo v. Bhowaneedeen Kulwar (1870) 2 N.W.P.H.C.R. 223, a decision of the year 1870, which was also cited, it is stated in the very brief judgment that the possesion of the third party was adverse to the mortgagee but the facts are not set out. If this case proceeded on the authority of Ram Coomar Sein v. Prosunno Coomar Sein (1864) W.R. 375 it is open to the same observations.

6. Karan Singh v. Bakar Ali Khan (1883) I.L.R. 5 All. 1 (P.C.) : 9 I.A. 99 the case on which most reliance is placed in Ramasami Chetti v. Ponna Padayachi I.L.R. (1913) 36 Mad. 97 and Bireshwar Samanta v. Priya Sakhi Debi 28 Ind.Cas. 917, was decided under the Limitation Act of 1871 which by Article 132, in suits for money charged on immoveable property, allowed twelve years from the date of the money being due; and by Article 135, in suits instituted in a Court not established by Royal Charter by a mortgagee for possession of immoveable property mortgaged, allowed twelve years from the time when the mortgagee was first entitled to possession; and by Article 145, in suits for possession of immoveable property or any interest therein not otherwise, specially provided for, allowed 'twelve years from the time when the possession of the defendant or of some person through whom be claims became adverse to the mortgagee.' The judgments of the Allahabad High Court before whom Karan Singh v. Bakar Ali Khan I.L.R. (1883) All. 1 : 9 I.A. 99 came on appeal and Letters Patent Appeal have not been reported, but the learned Judges who made the reference to the Full Bench in Raj Nath v. Narain Dass I.L.R. (1914) All. 567 state that they examined the records of this case and that the five-Judges of the Allahabad Court before whom the case came seem to have been of opinion that twelve years' adverse possession would bar a suit in a simple mortgage, and seem to have attached no importance to the fact that the mortgagee had not been entitled to possession of the property; and that they also seem to have thought that Article 45 and not Article 132 was the article applicable. The language of Article 145 as to the class of suits it covers is much the same as that of section I, Article 12 of the Act of 1859, and, according to the decisions already referred, was wide enough to cover a suit for sale; but this was only the residuary article, and, if the claims of Article 132 had been urged at the bar, they must have been dealt with in the judgment The contest in the High Court was as to whether the possession by the Collector had been adverse to the plaintiffs. The majority held that it had not, and their Lordships agreeing with them on this point dismissed the suit without calling on the other side. The only other point taken by the appellant was that it was for the plaintiff to show that he had been in possession within twelve years. As to this their Lordships observed in effect that this was so under section I, Article 12 of the Act of 1859, under which time ran from the date of the cause of action, but not so under Article 145 of the Act of 1871 under which time ran from the date when the possession became adverse to the plaintiff. Article 145 was apparently the article relied on for the appellant, and I do not think this observation can be taken as amounting to a decision as to the inapplicability of Article 132 as the point was not taken and the respondent who was not called on had no occasion to take it even if he had so desired. Still less do I regard it as a decision as to the inapplicability of Article 132 of the Act of 1877 as interpreted by their Lordships in Vasudeva Mudaliar v. Srinivasa Pillai I.L.R. (1907) Mad. 426 or of Article 132 of the present Act to a suit for sale by a mortgagee on a simple mortgage governed by the Transfer of Property Act.

7. Further taking Article 145 to have been the article applicable, I think that on the finding that twelve years' adverse possession had not been proved, the question whether such possession, if proved, would have been adverse to the mortgagee though not entitled to possession cannot be considered to have been decided, as it does not appear to have been raised and there was no occasion or opportunity for the respondent to raise it. Moreover, as was acutely pointed out by Munro, J., it is not clear that it arose on the fact?, because the Collector took possession before the date of the mortgage sued on, and if his possession was held adverse to the mortgagee, the latter would have been clearly barred by twelve years' adverse possession commencing before the date of the mortgage.

I would answer the reference in the negative.

Sadasiva Ayyar, J.

8. One of the reasons given for the decision in the Full Bench Caso in Peria Aiya Ambalam v. Shanmugasundaram (1913) 26 M.L.J. 140 et. Seq. is that 'where more than one inference may be drawn, that inference should not be drawn which imputes a wrongful act to a person.' In that ease, the mortgagee in possession was ousted by a trespasser and it was held that the trespasser should not be imputed with an intention to injure the mortgagor also, if it could be helped, His trespass against the mortgagee was, no doubt, wrongful but (if I interpret the above passage correctly) a further wrongful intention against the mortgagor also need not and should not ordinarily be imputed to the trespasser.

9. That reason appears to me to be equally or rather a fortiori applicable to a case where a trespasser, who dispossessed the mortgagor is pleading that his possession is adverse to the rights of a simple mortgagee who is not entitled to possession of the mortgaged land.

10. The question whether when the simple mortgagee is not entitled to possession, even a distinct notice by the trespasser to that mortgagee that he (the trespasser) denies the mortgagee's right could be treated as adverse possession of the incorporeal rights of the mortgage? his a sort of indirect bearing on the question before us and was therefore argued by the appellants' learned vakil, Mr. G.S. Ramachandra Ayyar. On this point I have heard nothing which compels ma to recede from the view expressed by me in Lakshmi Narayana Aiyar v. Ulagammal (1914) 28 M.L.J. 256, that it is very difficult to establish the claim of acquisition of title by adverse possession of an incorporeal right. With the greatest respect to certain obiter observations contra in the judgment in Peria Aiya Ambalam v. Shanmugasundaram (1913) 26 M.L.J. 140 et. seq. I am unable to concur with them. Assuming that the Roman Law is different [see Nallamuttu Pillai v. Belha Naickan I.L.R. (1900) Mad. 37, which was, however, a case where the adverse possession began before the date of the mortgage] that rule of Roman Law was probably based (as pointed out by my learned brother Srinivasa Ayyangar, J., in the judgment now to be pronounced by him) on the rights of a simple mortgagee under the Roman Law to get possession of the hypotheca after the money became due by expiry of the time fixed for payment. If, however, it is otherwise, it does not then seem to me to be such an equitable rule as ought to be followed by Indian Courts, having regard to the fact that the English Statute Law has deliberately laid down the opposite rule, even though a mortgagee under the English form of mortgage obtains the legal ownership of the mortgaged property unlike an Indian mortgagee.

11. If some tangible benefit (periodical or otherwise such as the right to receive rents and profits though not to get physical possession) is derivable by the owner of an incorporeal right and if he is prevented by the trespasser from getting that benefit and if the trespasser obtains that benefit himself, a dispossession of such incorporeal right is conceivable. See Venkataramanachari v. Thirunaranaahari (1914) 2 L.W. 212 but not in other cases. I therefore adhere to the views expressed by Napier, J., and myself in Venkata Krishna Moorthi v. Bheemakka 26 Ind.Cas. 295 and I willingly follow the very carefully considered judgment (if I may respectfully say so) in Parthasarathy Naicker v. Lakshmana Naicker I.L.R. (1912) Mad. 231 whose authority is endorsed by the judgment just now pronounced by my Lord answering the reference in the negative.

Srinivasa Ayyangar, J.

12. I think on principle the question under reference admits only of one answer, i.e., in the negative. The rights of a simple mortgagee of immoveable property are now settled by statute. He is not an owner and is not entitled to possession of the mortgaged property. He has no claim to the produce or the rents and profits of the property either before or after the mortgage money becomes due. A simple mortgage does not vest any estate in the mortgagee: Ghose on Mortgages, page 76, fourth edition and Papamma Rao v. Ramachandra I.L.R. (1896) Mad. 249. His only right is to cause the property to be sold through Court. The mortgagor as owner is entitled to remain in possession and receive the rents and profits of the land; he is not accountable for them or for the use he makes of his property to the mortgagee provided he does not commit waste so as to render the security insufficient. The right of a simple mortgagee is however a real right, and he is entitled to enforce his charge even against a purchaser for value without notice. Except for a possible difference as regards their enforceability against purchasers for value without notice, there is no difference in their legal incidents between a simple mortgage and a charge. See observations of Krishnaswami Ayyar, J., in Balasubramania v. Sivaguru : (1911)21MLJ562 . A suit by a simple mortgagee to enforce payment of the mortgage money by a sale of the property is governed by Article 132 of the Limitation Act, and he is entitled to bring such a suit within twelve years after the mortgage money had become due: see Vasudeva Mudaliar v. Srinivasa Pillai (1907) I.L.R. 30 Mad. 426 (P.C.). His right cannot be extinguished under Section 28 of the Limitation Act, though the bar of the remedy in the case of a real right may have the same effect as the extinction of the right itself. As he is not entitled to possession of any sort or kind of the mortgaged property, there can be no adverse possession against him. Can then his rights be affected by a trespasser taking possession of the mortgaged property ousting the mortgagor in possession? If they are, he must have a cause of action against the trespasser. Abdur Rahim, J., thinks he has. He says that 'these two cases' [referring to Ram Coomar Sein v. Prosunno Coomar Sein (1864) W.R. 375 and Sheoumber Sahoo v. Bhowaneedeen Kulwar (1870) 2 N.W.P.H.C.R. 223]' make it clear that the mortgagee is not without remedy against a trespasser taking possession of the mortgaged land, although it may be that he is not entitled to possession under his mortgage, and I myself o not see any valid reason why the mortgagee should not be able under such circumstances to protect his interest by proper proceedings. 'Ramasarni Chetti v. Ponna Padayachi I.L.R. (1913) Mad. 97: I am unable to see what suit a simple mortgagee is entitled to bring to protect his interests as against a trespasser, and there is no indication in the learned Judge's judgment as to the nature of the proceedings by which he is to protect his interests. He obviously cannot bring ejectment against the trespasser, and he certainly cannot bring a suit praying that possession be delivered to the mortgagor as the mortgagor's possession is not in any sense for the benefit of the simple mortgagee. A simple suit for declaration of the mortgagee's right when such a right is denied by the trespasser may probably be brought, but that is a proceeding which the mortgagee is not bound to take, and a decree in such a suit cannot save the rights of the mortgagee from becoming barred if otherwise they would be. The cases referred to by the learned Judge were cases where the mortgagee was entitled to possession either before or after the mortgage amount had become due, and it is possible in those eases for a mortgagee-to bring ejectment against a trespasser. A squatter taking possession of the mortgaged property may equally affect the interests of the mortgagee and the mortgagor where both of them are entitled to or are in possession of their respective interests in the property where such interests are capable of possession. Even incorporeal property may be capable of possession in law, but such possession involves either actual possession of tangible property or the receipt of some tangible benefit, therefrom. Such possession may also be protected by possessory remedies. It must also be remembered that the mortgagor does not hold possession of the property on behalf of the mortgagee and the mortgagor is not charged with the duty of protecting the interests of the mortgagee, as a trustee or the karnavan of a tarwad or the manager of a joint Hindu family is charged with the duty of protecting the interests of a cestui qui trust or the junior members of the family. [See the observations of Sundara Ayyar, J., in Ambalavana Chetty v. Singaravelu Udayar (1912) M.W.N. 669] The mortgagor's laches or negligence should not affect the rights of the mortgagee. If therefore a simple mortgagee has no cause of action against a trespasser, his rights should, not be affected or be extinguished by the operation of any law of limitation. It is true that a simple mortgagee may be entitled to enforce payment of the money due, by a sale of the property if the mortgage amount had become due; but that cause of action accrues to him owing to the default of the mortgagor and not on account of any act of the trespasser. If the mortgage money had not become due, he cannot institute a suit to recover it though a trespasser may have taken possession of the mortgaged property and it would be most unreasonable to hold that the mortgagee's rights are extinguished by the extinction of the mortgagor's title by twelve years' adverse possession before the mortgagee is in a position to protect his rights. To adopt the language of the Master of the Rolls in In re Nisbet and Potts' Contract (1906) L.R. 1 Ch. 386, 'unless and until the right of the mortgagee has been in some way infringed so that it becomes necessary for him to enforce that right, there is no reason, either in principle or in fairness, why his right should be in any way affected.' I see no reason therefore for holding that the extinction of the mortgagor's title by the adverse possession of a third party operates to extinguish the mortgagee's right to enforce his charge, any more than easements over the property.

Subrahmanya Ayyar, J.

13. however seems to think that a hypothecation right is liable to be affected by prescription. He says that 'there can be no doubt that such a right is liable to be affected not only by lapse of time as between the creditor and the debtor, but also by possession of the hypothecated property held for the required period by a third person on a claim inconsistent with the rights of both the creditor and the debtor' and relies on some passages in Salkowski's Roman Law, Mackledey's Roman Law and Hunter's Roman Law. In the passage just quoted the learned Judge seems to assume that a mere claim to hold property free of a charge could operate to extinguish such rights although the act of possession by itself may not affect it. If the trespasser's possession by itself could not affect the rights of the simple mortgagee the assertion by such trespasser could not possibly have any effect. As stated in Angell on Limitations 'The principle on which the statute of limitations is predicated is not that the party in whose favour it is invoked has S9t up an adverse claim for the period specified, but that such adverse claim is accompanied by such invasion of the rights of the opposite party as to give him a cause of action, which having failed to prosecute within the time limited bylaw, he is presumed to have extinguished or surrendered. A mere claim of title unaccompanied by adverse possession, gives no right of action to the person against whom it is asserted and consequently his rights are unaffected by statute.' (See Angell on Limitations at page 398.)

14. In Roman Law there was, it seems, in later times, no distinction between a pignus and a hypotheca and in both forms of mortgage the mortgagee was entitled to the possession of the mortgaged property. In pignus the possession was given to the mortgagee at the time of the transaction, while in hypothecation the mortgagee was entitled to obtain possession after the debt became due. [Hunter's Roman Law, pages 436 and 447 (Remedies), Salkowski's Roman Law at page 485 and Mackledey's Roman Law at page 285.] It is instructive to note that Lord Hobhouse thought that except for long practice and the Transfer of Property Act, it might be reasonably argued that a simple mortgagee in India was entitled to usufructuary possession under the terms of his contract: Papamma Rao v. Ramachandra I.L.R. (1896) Mad. 249.

15. Are we then compelled to answer the question in the affirmative by any authority binding on us? Reliance was placed on the decisions of the Privy Council in Prannath Roy Chowdry v. Rookea Begum (1859) 7 M.I.A. 323 and Karan Singh v. Bakar Ali Khan (1883) I.L.R. 5 All. 1 (P.C.) : 9 I.A. 99. The plaintiff in Prannath Roy Chowdry v. Rookea Begum (1859) 7 M.I.A. 323 had obtained a mortgage by conditional sale from the owner and had instituted proceedings to foreclose the mortgage under Regulation XVII of 1806. After obtaining a foreclosure order he brought a suit to recover possession of the properties, as owner against the defendant who was in possession claiming under a purchase from the mortgagor which however was not proved or admitted in the case. The question was whether the plaintiff had validly foreclosed the mortgage by conditional sale so as to enable him to bring ejectment as owner. The proceedings for foreclosure were taken more than twelve years after the expiry of the term for the repayment of the mortgage money. Under Bengal Regulation III of 1793 a suit was barred 'where the cause of action shall have arisen twelve years before any suit shall have been commenced on account of it.' In discussing the question whether the plaintiff was entitled to bring a suit for foreclosure after the expiry of twelve years, their Lordships pointed out that a suit for foreclosure against the mortgagor or against persons claiming in privity with the mortgagor may not be barred, while a suit for possession against a stranger who claimed to hold the property free of any mortgage may be barred. But their Lordships do not say that the mortgagee's right may be barred by the possession of an adverse claimant, even if the mortgagee's right to possession had not accrued, or where the mortgagee was not entitled to possession at all. On the other hand in Anundo Moyee Doswe v. Dhonendro Chunder Mookerjee (1871) 14 M.I.A. 101, their Lordships say: 'If the title of the mortgagee to enter by reason of a default having occurred before, had accrued, and if the purchaser under such a title, i.e., as purchaser at an execution sale, had been in possession for twelve years, believing himself to be the bona fide owner, under a claim to the ownership of the property, and not being in possession in any way as mortgagor or under the mortgagor, they are of opinion that the suit Co disturb the possession of such a purchaser ought to be brought within the twelve years after the commencement of his possession.' That I think conclusively shows that a mortgagee who had no right to enter was not affected by any adverse possession.

16. In Karan Singh v. Bahar Ali Khan (1883) I.L.R. 5 All. 1 (P.C.) : 9 I.A. 99 the plaintiff a simple mortgagee sued to enforce his charge. The mortgages were executed in the year 1862 on behalf of the daughter's sons of the last male owner. The property was in the possession of his widow till the end of 1860. It appears that on the death of the widow disputes arose as to the title to the property between the defendant Karan Singh and the daughter's sons of the last male owner, each claiming the property as his. Neither party was in possession, the Collector having taken possession of the property in 1861 soon after the death of the widow to secure the Government revenue pending the settlement of the disputes between the rival claimants. The mortgages were executed in January and October of 1862 on behalf of the daughter's sons when they were not in possession of the property and before the disputes as to title were settled. In 1863 by an award the title of the defendant Karan Singh was established against the daughter's sons in a proceeding to which the mortgagee was not a party and the Collector handed over possession of the property to Karan Singh and also paid him the income of the estate in his hands. The plaintiff brought the suit in July 1874 and the defendant pleaded that he had been in adverse possession for the statutory period of twelve years from the year 1861 treating the possession of the Collector as his possession. If the defendant's contention was correct it is obvious that the mortgagee would not be entitled to sue to enforce his mortgages as the effect of the defendant's possession would have been to extinguish the title of the mortgagor from the year 1861. Rajah of Venkatagiri v. Isakapalli Subbiah I.L.R. (1903) Mad. 410 and Nand Kumar Dobey v. Ajodhya Sahu (1911) 14 Cri.L.J. 292. The sole question in the case therefore was whether the defendant was in adverse possession from 1861. When their Lordships speak of the possession of the plaintiff or of the possession of the defendant adverse to the plaintiff, they were, I think, referring to the mortgagor under whom the plaintiff claimed, as they speak of possession and adverse possession in 1861 before even the mortgages were executed. There is really no warrant for the inference that their Lordships assumed that a suit by a simple mortgagee to enforce his charge by sale was a suit for possession, that such a mortgagee was entitled to possession or that such a suit was governed by Article 145 of the Limitation Act of 1871 corresponding to Article 144 of the Acts of 1877 and 1908. In the Act of 1859 there was no special provision for suits by a mortgagee except that in suits by a mortgagee to recover possession of the mortgaged properties from the mortgagor in Courts establishel by a Royal Charter the time when the cause of action arose was denned by Section 6. They were governed by Clause 12 of Section 1 and even a suit by a hypothecatee to enforce his charge was held to be a suit for recovery of an interest in immoveable property and the period of limitation was twelve years from the time the cause of action arose, [Surwan Hossein v. Shahazadah Golam Mahomed (1868) 9 W.R. 170, Chetti Gaundan v. Sundaram Pillai (1864) 2 M.H.C.R. 51 and Juneswar Dass v. Mahabeer Singh (1876) I.L.R. 1 Cal 163 (P.C.). Sir Bajanes Peacock is reported to have said that 'If land is mortgaged as security for a loan, in addition to a covenant for the payment of the money, the mortgagee may sue the mortgagor for a breach of the covenant, and he may also bring an action of ejectment to recover the land mortgaged as a collateral security. It appears to me that the charge upon the land created an equitable interest in the land, and that a suit brought; to enforce that charge is in substance and in effect a suit for the recovery of that interest.' See page 174 in Surwan Hussein v. Shahazadah Golam Mahomed (1868) 9 W.R. 170. A simple mortgagee under the Transfer of Property Act can neither bring ejectment to recover the land mortgaged, nor can it be said that his right is an A equitable interest As pointed out by Seton Karr, J., in the same case it must be admitted that the language of the article was not quite appropriate as applied to a suit to enforce a change by sale. Clause 12 was however applicable whether the suit was against the mortgagor or persons claiming under him or against a trespasser in possession, When the Act of 1859 was repealed and the Act of 1871 passed, special articles were enacted; viz., Article 132 in respect of suits to enforce payment of money charged on land, Article 149 in respect of suits in the Chartered High Counts to recover possession of the mortgaged property from the mortgagor, and Article 135 for similar suits in mufassal Courts; but the words 'from the mortgagor' are omitted. It has been held that Article 135 applies to suits for possession against both mortgagors and strangers: Surnomoyee Dasi v. Srinath Das I.L.R. (1886) Cal. 614, There was no special article as regards suit3 for foreclosure (that was first introduced in the Act of 1877, Article 147). Clause 12 was re-enacted as Article 145, but with a change in the wording. Instead of the words 'for the recovery of' the words 'for possession of' were substituted which are even less appropriate to a suit for sale. It is admitted that Article 132 of the Act of 1871 was applicable to suits by a simple mortgagee instituted against the mortgagors or persons claiming under them to enforce the charge by sale of the mortgaged property, and the Privy Council in Vasudeva Mudaliar v. Srinivasa Pillai (1907) I.L.R. 30 Mad. 426 (P.C.) say that it was perfectly settled that such suits were governed by that article. The Privy Council in the above case make no distinction whatever between suits against mortgagors and against strangers in possession of the mortgaged property and the language of the article does not warrant any such distinction. But we are asked to infer that their Lordships in Karan Singh v. Bakar Ali Khan (1883) I.L.R. 5 All. 1 (P.C.) : S.C. 9 I.A. 99 assumed without question or discussion that such a suit was not governed by Article 132, but was a suit for possession against a stranger in possession of immoveable property governed solely by the residuary Article 145, that they assumed unnecessarily a metaphysical possession in the simple mortgagee and that he was affected by a vicarious bar. I decline to draw any such inference. The Privy Council characterised Act XIV of 1859 as an inartificially drawn statute and the later Act of 1871 as a 'more carefully drawn statute'; see Maharana Futtehsangji Jaswantsangji v. Dessai Kullianraiji Hekoomutraiji (1874) 21 W.R. 178 (P.C.) and Delhi and London Bank, Limited v. Orchard (1878) I.L.R. 3 Cal. 47 (P.C.). It seems to me that the Legislature in 1871, specially enacted Article 132, for all suits by simple mortgagee to enforce the payment of money charged by sale of the property mortgaged instead of leaving some suits to be governed by that article and others by Article 145.

17. It is unnecessary to deal with the other cases as they are reviewed by Munro, J., in Parthasarathy Naicker v. Lakshmana Naicker I.L.R. (1912) Mad. 231 and Karamat Hussain, J., in Nandan Singh v. Jumman I.L.R. (1912) All. 640.

18. In England the matter is settled by statute. I may bow-ever refer to a passage in the judgment of Farwell, J., in In re Nisbet and Potts' Contract I.L.R. (1906) Ch. 386, in the first Court wherein he holds that a charge on the property can be enforced against a trespasser who acquired a title to the property by adverse possession.


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