KONNAN SANKU OF MOOTHEDATHU Vs. KALYANI PARVATHI AMMA

JUDGEMENT

(1.) The suit properties were demised on lease by the jenmi to one Konnan (senior) who died leaving him surviving, four sons, Konnan (junior) who was the deceased husband of the 3rd plaintiff and the father of the plaintiffs 1 and 2, Ravunny who was the father of defendants 6 and 7, Ittaman the 4th defendant and Velayudhan the 5th defendant. Ravunny, and defendants 4 and 5 mortgaged the leasehold by Ext. A in the year 1108 to the first defendant. The jenmi gave a subsequent lease of the properties to the second defendant, the wife of the first defendant, by Ext. B in the year 1118. She sued the first defendant, Ravunny and defendants 4 and 5 in O.S. 350 of 1118 for recovery of possession. Pursuant to the decree therein, the first defendant surrendered the properties to her. The plaintiffs have now sued to redeem Ext. A. The two courts have dismissed the suit on the ground that it is barred by limitation. In this Second Appeal by plaintiffs 1 and 2, the sole question for decision is whether the suit is barred by limitation or not.

(2.) It was not contested, that the possession of the second defendant from the date of the surrender of possession to her had been adverse to the plaintiffs. But it was contended that the sons of Konnan (senior) being coowners of the leasehold, the possession of the first defendant under Ext. A was not adverse to Konnan (junior) the predecessor-in-interest of the plaintiffs and that in any event, the 1st defendant could prescribe only for a mortgagees estate and the suit for redemption ought to be decreed. The preponderance of authority is in favour of the view, that the execution of a mortgage of the whole property under which the mortgagee enters possession operates as an ouster of the other coowners and to their knowledge. The cases on the subject have been discussed by a full bench of the Madras High Court, in Palania Pillai v. Amjath Ibrahim, AIR 1942 Mad. 622 , which held that where some coowners usufructuarily mortgage specific items of property ... and the mortgagee enters into possession ... a suit to recover the share therein by the other coowners is barred by Art.144 of the Limitation Act at the end of 12 years of such possession. In Joseph v. John, 1959 KLT 630 , sitting as a single Judge, I have applied the same principle, where a stranger purchaser in execution of a decree against one coowner was in possession of the whole property for more than 12 years. In my opinion, the rule applies to the possession of a mortgagee of the whole property from a coowner.

(3.) The second argument appeared plausible, that the mortgagee could prescribe only for a mortgagees estate. In fact this was assumed without contest in Palania Pillais case. But the point arose for decision before a full bench of the former Cochin High Court in Matheis v. Kunhikkavu Varassyar, 39, Cochin 97. In that case, as in the present, though there was no express denial of the rights of the other coowners, the mortgage deed was executed as if the mortgagors were the sole coowners. In this sense, there was an assertion of a title hostile to the others. The principle was stated thus:-