ANANTHAN POTTI Vs. KRISHNA PILLAI

JUDGEMENT

(1.) This Second Appeal has been preferred by the defendant in a suit for declaration of title and recovery of property and is directed against the decision of the Additional District Judge of Quilon decreeing the suit and thus reversing the judgment of the Trial Court. The plaint schedule property bearing Sy. No. 121/12-C was mortgaged along with Sy. Nos. 121/12-A and B being six paras of paddy land in extent by one Sankaran Padmanabhan in 1052 in favour of the predecessor in interest of the defendant. Two puarkkadams were executed in 1060 and 1067. On 20.11.1098 the plots bearing Sy. No. 121/12-A and B were surrendered by the mortgagee to the family of the mortgagor on receipt of 2300 fanams and a receipt Ext. I given to the mortgagee. The plaintiff obtained an assignment of the rights of the mortgagor and came forward with the suit claiming that he is entitled to redeem and recover possession of Sy. No. 121/12-C remaining and in the hands of the mortgagee on payment of 100 fanams which, according to him, was the balance of the mortgage amount left unsatisfied at the time of Ext. I. The defendant contended that the mortgage and purakkadams were only for 2300 fanams, that the whole of the mortgage amount was paid at the time of Ext. I, that the mortgage was thus extinguished, that he was holding the property from that date adversely to the mortgagee and the plaintiff was hence not entitled to any redemption or recovery as sought for. The Trial Court held that the mortgage amount was only 2300 fanams, that after Ext. I the possession of the plaint schedule property by the predecessors-in-interest of the defendant was not as mortgagees and hence the possession was adverse and the suit was barred being brought beyond 12 years from that date. The lower appellate court reversed the said decision finding that though the whole of the mortgage amount of 2300 fanams was paid to the mortgagee when Ext. 1 was obtained the relation between the parties as mortgagor and mortgagee continued as such and there was no bar of limitation for redemption and recovery. On behalf of the appellant it is contended that after Ext. I the possession of the defendant was independent of the mortgagor and adverse to him, and that the lower appellate court was wrong in holding otherwise.

(2.) So the sole question that arises for consideration is as to what is the effect of the surrender of part of the mortgage security on receipt of the whole of the mortgage amount as evidenced by Ext. I. Ext. I says that the properties mentioned there were then being held under the mortgage deed of 1059 and the purakadoms of 1060 and 1067 and that they were surrendered on receipt of 2300 fanams charged upon them, that all documents and michavaram receipts were handed over to the mortgagor and mortgagee released all his rights. The lower courts have concurrently found that the mortgage amount was only 2300 fanams. So it is seen that the whole of the mortgage amount was paid and all the documents returned. From Ext. I it is clear that the parties were under the impression that the relationship of mortgagor and mortgagee was extinguished. If any item was intended to be left with the mortgagee some reference would have been made in the deed. So it is clear that there was no intention in the minds of the parties that Sy. No. 121/12-C was to continue in the possession of the mortgagee to be redeemed or recovered by the mortgagor at a future time. The question is what is the effect of such possession of the defendant after that. Coming to the decisions cited, in Sudarshan Shastri v. Ram Prasad (38 Allahabad 97) it was a question of the right of redemption arising out of a usufructury mortgage. There, certain provisions of Bengal Act XV of 1793 came up for consideration. That section stipulated the interest which was to be allowed on mortgage securities executed after the particular date and prescribed that all such mortgages are to be considered as virtually and in effect cancelled and redeemed whenever the principal sum with simple interest due upon it shall have been realised from the usufructs of the mortgaged property. It was contended that after the extinguishment of the mortgage as provided therein the mortgagee held the property adversely to the mortgagor. Negativing this plea it was observed as follows at page 98:

(3.) Coming to the decisions dealing with cases similar to the one here in Keshablal v. Bhalanath (AIR 1926 Calcutta 910) the whole of the mortgage amount was paid off but a part of the mortgage security remained in the hands of the mortgagees. When a suit for redemption was brought the mortgagees contended that they were holding under an oral sale from the mortgagor and even otherwise the suit was barred on account of adverse possession being brought beyond 12 years of the extinguishment of the mortgage by surrender of part of the mortgage security. The learned Judges while remanding the suit for fresh findings as to whether the part of the security then found in the possession of the mortgagees had also been surrendered to the mortgagor on the extinguishment of the mortgage and had subsequently passed to the mortgagee and other relevant points observed as follows at page 912.