RAMACHANDRAN NAIR Vs. GOVINDAN

JUDGEMENT

(1.) This is an appeal by the plaintiff whose suit was dismissed by the Trial Court. The property described in the plaint schedule belonged to the tarwad of the plaintiff and defendants 14 and 15. This property was mortgaged by the plaintiff's tarwad to one Parvathy Lekshmi and defendants 1 and 13. Parvathy Lekshmi died and defendants 1 to 13 are now in possession. Under two deeds of partition in the plaintiff's tarwad the equity of redemption was obtained by the plaintiff. Defendants refused to surrender the property on receipt of the mortgage amount and value of improvements alleging that the equity of redemption was acquired by them under a court sale and delivery in execution of the decree in O.S. No. 1405 of 1100. The plaintiff therefore instituted this suit for declaration of his title to the equity of redemption and for redemption of the mortgage. The suit was contested by Defendants 1 and 12 who contended that the plaintiff's right to redeem the mortgage was lost by the court sale referred to above and that the equity of redemption was purchased and taken delivery of them. It was also contended that since twelve years had expired from the date of delivery of the said right in execution, the suit was barred by limitation. They also disputed the plaintiff's claim to mesne profits. Compensation for improvements was also claimed. The plaintiff's reply to these contentions was that the decree and execution proceedings O.S. No. 1405 of 1100 were null and void as the decree was not obtained against the plaintiff's tarwad with proper persons on the array of parties. The Trial Court found that the decree and execution proceedings were valid and binding on the plaintiff's tarwad and that the suit was barred by limitation. The suit was accordingly dismissed and the plaintiff has preferred this appeal.

(2.) The two questions that arise for decision in this appeal are whether the decree and execution proceedings in O.S. No. 1405 of 1100 are valid and whether the suit is barred by limitation. O.S. 1405 of 1100 was filed in the following circumstances. After the mortgagees took the usufructuary mortgage it was found that the property was in the possession of a lessee under an earlier lease granted by the plaintiff's tarwad and the mortgagees failed to obtain possession of the property. They accordingly sued for recovery of possession of the property from the lessee and also for recovery of mesne profits from the 1st defendant in that suit who is the 15th defendant in this suit and who was the karnavan of the plaintiff's tarwad at that time and also from the mortgaged property. Though the 1st defendant in that suit contested, a decree was passed in favour of the mortgagees for recovery of mesne profits and costs from the 1st defendant and the property. It was in execution of this decree that the property was sold in court auction and purchased by the mortgagees. The question of the validity of the decree and execution proceedings in that suit depends on whether the decree was properly obtained against the plaintiff's tarwad to whom the equity of redemption belonged. Ext. I is copy of the plaint and Ext. V the decree in O.S. 1405 of 1100. The suit was not framed as one against the tarwad. It has been found by the court below that the senior Anandiravan of the tarwad was not made a party to that suit. However, the lower court took the view that the omission to implead the senior Anandiravan in the suit was not material since the karnavan who was the 1st defendant contested the suit. This view is quite unsustainable. A decree which is not obtained in conformity with S.31 of the Nair Act (II of 1100) is a nullity. Following the earlier decisions on the subject a Full Bench of this Court has held in Lekshmi Pilla Kamakshi Amma v. Peruman Thampi Gangadharan Pillai ( 1953 KLT 706 ) that a decree obtained against a member or members of a Nair tarwad in contravention of the provisions of S.31 of the Nair Act is null and void so far as the tarwad and its properties are concerned. It was also held that if in execution of a void decree properties belonging to the tarwad were sold, then the court sale also would be null and void. It is therefore clear that the decree and execution proceedings in O.S. No. 1405 of 1100 could not affect the tarwad or its rights in the property. The equity of redemption was not therefore lost to the tarwad by the court sale.

(3.) The next question is whether this suit which was instituted more than twelve years after the court sale and delivery of the equity of redemption is barred by limitation. The contention of the respondents is that after the date of the delivery in execution they were holding the property not as mortgagees but as full owners and that their possession after that date was to be deemed adverse to the plaintiff's tarwad. This contention is unsustainable for more reasons than one. It is an elementary proposition that there cannot be adverse possession of a property against a person who is not entitled to possession of the property on the date such possession starts. The mortgage in this case was one dated 29.12.1099 and it was for a term of 12 years. The court sale was on 27.6.1106 and delivery pursuant to the sale was on 26.10.1108. The plaintiff's tarwad could not exercise the rights of redemption before 29.12.1111. Possession of the auction purchaser could not therefore be adverse until that date. This suit is instituted within twelve years of the expiry of the period of twelve years during which the mortgagees were entitled to be in possession. There is another reason for not upholding the defence plea. A mortgagee who enters into possession of the mortgaged property in his capacity as a mortgagee cannot during the continuance of the mortgage assert any adverse possession against the mortgagor. As between the mortgagor and mortgagee, neither exclusive possession by the mortgagee for any length of time short of the statutory period of limitation for redemption of the mortgage nor any acquiescence by the mortgagor not amounting to release of the equity of redemption will be a bar or defence to a suit for redemption if the parties are otherwise entitled to redeem. This was the view laid down by the Privy Council in Khiarajmal v. Daim, ILR 32 Cal. 296. Mir Wajid Ali v. Alidad Khan AIR 1940 Pat. 45 was a case in which the facts were exactly similar. In that case the mortgagee obtained a decree against the heirs of one of the mortgagors who owned a definite share in the equity of redemption for recovery of possession on the ground of trespass while the mortgagees were in possession. The equity of redemption was sold in execution of the decree for costs and when one of the heirs of the mortgagor who was not a party to the previous suit sued for redemption, the defendant contended that he had obtained full title by reason of the court sale and delivery in execution. This defence was overruled. As the sale in execution of O.S No. 1405 of 1100 was in execution of a decree which was void so far as the plaintiff's tarwad was concerned, the possession of the mortgagees continued as before. The position would certainly be different if the tarwad was dispossessed of a property in their possession in execution of such a decree and the person who obtained such possession was allowed to remain in possession for twelve years. The possession of the defendants in this case after the court sale and delivery cannot therefore be deemed adverse to the mortgagors and the suit is not barred by limitation.