SANKARAN PARMESWARAN PILLAY Vs. SANKARAN CHANDRASEKHARAN PILLAY

JUDGEMENT

(1.) This is an appeal by the plaintiffs against the decree dismissing their suit, described as a suit for redemption, on the ground that the same is barred by adverse possession. Two items were the subject matter of the suit. In regard to item 2, it was conceded in the Trial Court (vide Para.8 of the judgment) that the plaintiffs had no right to redeem or recover possession. Despite this concession in the appeal preferred against the dismissal of the suit, defendants 2 and 3 who were interested only in item 2 were also impleaded. The lower appellate court dismissed the appeal with costs of defendants 2 and 3. Despite this, in this second appeal again, the legal representation of defendants 2 and 3 also have been joined as respondents and relief has been broadly claimed in respect of both the items. We have no hesitation, at the outset itself to dismiss this, second appeal with costs as against defendants 2 and 3 (now represented by their legal representatives).

(2.) The facts giving rise to this second appeal are briefly these The properties belonged to the tarward of the plaintiffs and defendants 1 to 3, and were mortgaged by the karanavan of the tarwad to the father of defendants 1 to 3 by Ext. P6 dated 9-12-1063 M. E. for a sum of Rs. 175/-. On the terms of the mortgage, the mortgagee was to appropriate profits towards interest on the mortgage and pay a purappad of 5 1/2 rupees per year, to the tarwad. The mortgagee was also to effect improvements in the properly and to be entitled to their value. The mortgagee gifted his mortgage right by Ext. D2 dated 13-4-1089 to his children, defendants 1 to 3. In a partition among them, the mortgage right was allotted to the share of the 1st defendant. Certain other properties belonging to. the tarwad were assigned to a stranger who was directed to pay off Ext. P6 mortgage. This was done, and Ext. P7 dated 23-2-1104, is the receipt for discharge of the said mortgage amount. The suit out of which this second appeal arises was instituted on 22nd March 1960, styled as a suit for redemption and recovery of possession along with the documents of title relating to the properties. Both the courts below found that after discharge of the mortgage amount under Ext. P7 receipt, the possession of the mortgagee was adverse to the mortgagor's tarward, and as the said possession had continued for over 12 years, the plaintiffs' rights had been barred by adverse possession and limitation. On this finding, they dismissed the plaintiff's suit. We find it difficult to support this reasoning of the courts below. Under S.60 of the Transfer of Property Act, the mortgagor has, on redemption, the right to require the mortgagee: (a) to deliver the mortgage deed and all documents of title in respect of the mortgaged property; (b) where the mortgagee is in possession to deliver possession thereof to the mortgagor; and (c) at the cost of the mortgagor either to retransfer the mortgaged property to him or to such other person as he may direct or to execute and to have registered an acknowledgement that any right in derogation of his interest transferred to the mortgagee had been extinguished. Again, under S.62 of the Act, in the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property together with the mortgage deed and all documents, under the contingencies mentioned in the Section, In addition to these, by the common law applicable to the Travancore area, where the suit mortgage was executed, (and where the Transfer of Property Act was not applicable till it was extended by the Part B State Laws Act of 1951), the mortgagee is entitled to be paid the value of improvements effected by him in pursuance of the mortgage, and to remain in possession till the same is paid. This is recognised by the terms of Ext. P6 mortgage itself. This right has since received statutory incorporation, first in the Travancore Cochin Compensation for Tenants Improvements Act of 1956, and later, in the Kerala Compensation for Tenants Improvements Act of 1958. Ext. P7 receipt also contains sufficient indication that amounts by way of compensation for improvements remain to be paid. In the face of the above statutory provisions, and to the provisions in the documents Exts. P6 and P7, we find it difficult to hold that the mere payment of the mortgage amount acknowledged under Ext. P7, would per se convert the possession of the mortgagee thereafter, as adverse to the mortgagor. In Prithi Nath Singh v. Suraj Ahir (1963 SC 1041) it is observed:

(3.) We would have therefore allowed this appeal. But the courts below have not considered the other issues arising for consideration in the case, and a remand for that purpose is anyway indicated. What is more, Counsel for the respondents 8 to 11, the legal representatives of the 1st defendant respondent, raised the contention before us, that quite irrespective of the plea of adverse possession, he is entitled to the benefits conferred by S.4A of the Kerala Land Reforms Act (Act I of 1964). It was contended that Ext. P6 being a usufructuary mortgage of the year 1063 M. E., and the mortgagee and his predecessors in interest, having remained in possession for a continuous period of over fifty years, they were entitled to the benefit of the section. For the appellant it was contended that once the mortgage amount had been paid off, although the payment by itself would not entitle the mortgagee to contend that his possession thereafter was adverse to the mortgagor, nevertheless, the mortgagee would not be entitled to say that he was still continuing as a mortgagee, or that the transaction of mortgage was still subsisting This, it was claimed, was the effect of the principles stated by the Supreme Court in Prithi Nath Singh's case ( AIR 1963 SC 1041 ). We think it unnecessary to pronounce on the contention of either party at this stage. The matter has to go back any way, to the lower court for consideration of the other issues. Even in regard to the applicability of S.4A of the Kerala Land Reforms Act, we think it very desirable and necessary that the parties should be given an opportunity of filing fresh pleadings, and of adducing such evidence bearing on the case as they may deem fit to adduce, before the Trial Court.