ROCKY FLORA GOMEZ Vs. PARVATHY AMMAL CHELLAMMAL

JUDGEMENT

(1.) This suit which has given rise to this appeal was brought by the plaintiffs for redemption of a mortgage effected by their father in favour of one Lekshmana Iyer on 21.10.1102 for a sum of Rs. 12000. It was provided in the deed of mortgage that if the mortgage was not redeemed within 4 years it would work itself out into a sale of the properties. The mortgagor sued for redemption in the year 1106 but the plaint was rejected for non payment of court fees. Thereafter the mortgagee got patta transferred to his name which resulted in another suit by the mortgagor for cancellation of the proceedings resulting in transfer of patta but the suit was dismissed holding that the change of patta did not effect title, if any, of the mortgagor. After the death of the mortgagor the plaintiffs instituted this suit for redemption. According to them a sum of Rs. 2157 stated in the deed of mortgage as having been received on an earlier date was not actually paid and another sum of Rs. 458 reserved for effecting repairs to the existing buildings and for putting up additional structures had not been expended by the mortgagee. It was therefore claimed that these sums should be deducted from the mortgage money. There was also a claim for damages on the ground that the buildings in the properties had fallen down dud to the negligence of the mortgagee. The damage was sought to be ascertained and set off against the mortgage money. The sole defendant in the suit is a purchaser of the property from the mortgagee. He resisted the suit contending that the original transaction was a sale and not a mortgage and that in any event the mortgagors title had been extinguished by adverse possession. The allegation that the mortgage was not fully supported by consideration was denied and the claim for damages was repudiated. He also claimed compensation for improvements effected in the property. The Trial Court held that the transaction was a mortgage and not a sale. It was also held that the mortgage was supported by consideration except to the extent of Rs. 458 reserved for making repairs. Overruling the plea of adverse possession, the plaintiffs were given a decree for redemption on payment of Rs. 14101-4-4 inclusive of the value of improvements amounting to Rs. 2761-12-3. The defendant has preferred this appeal from the decree.

(2.) The first point raised in appeal relates to the nature of the transaction i.e. whether the deed Ext. B evidences a mortgage or a sale. The conclusion reached by the learned Judge was not seriously assailed in view of the several decided cases on the question. We are satisfied that the finding recorded by the learned Judge is correct and that the stipulation that the mortgage was to amount to a sale in case it was not redeemed within 4 years is a clog on the equity of redemption.

(3.) The point strenuously argued by the learned counsel for the appellant was that the mortgagors title was extinguished by adverse possession, as the mortgagee held the property as owner after the expiry of the period of 4 years. It was contended that there was change in the nature of the possession and that the mortgagor had notice of the same. Reliance was placed on the written statements of the mortgagee in the two suits filed by the mortgagor where in his possession as owner was asserted. The question whether this plea can succeed depends on whether a mortgagee who came into possession under the mortgage can during the continuance of the mortgage prescribe against the mortgagor. In Khiarajmal v. Daim (ILR 32 Cal. 296) the Privy Council held that he could not. In that case the equity of redemption had been sold in execution of a decree against the heirs of the mortgagor and was purchased by persons who were found to be nominees of the mortgagees. One of the heirs sued for redemption more than 12 years after the court sale, contending that the execution proceedings resulting in the sale of the properties were enot binding on him as he was not properly represented in the suit and execution proceedings. A plea of adverse possession based on the purchase of the equity of redemption was set up by the defendants. The circumstances relied on as evidence of adverse possession were that since the date of the execution sale no accounts had been demanded by or rendered to the mortgagors or their representatives, that no payment of subsistence money which they were entitled to under the mortgage had been made to them, that the parties after the sale ceased to cultivate the land and left the village and that renewed pattas had been granted to the purchasers in execution. It was held that if the purchasers had been independent parties and accounts had been rendered and payments made by the mortgagees to them instead of to the mortgagors, the circumstances relied on would have been cogent evidence of adverse possession of the equity of redemption in favour of such third parties. It was further held that as the purchasers were agents of the mortgagees, possession had been that of mortgagees throughout and that as between the mortgagors and the mortgagees neither exclusive possession by the mortgagees for any length of time short of the statutory period of 60 years nor any acquiescence by the mortgagor not amounting to a release of the equity of redemption would be a bar or defence to a suit for redemption. Learned counsel for the appellant brought to our notice certain decisions in support of his argument that the altered nature of the possession would justify departure from the rule stated above. However when these cases are examined it is seen that they fall under the latter category of cases referred to the Privy Council viz., cases of acquiescence by the mortgagor amounting to a release of the equity of redemption. Usuman Khan v. Nagalla Dasanna and others ( AIR 1914 Mad. 576 (2) is one of the decisions relied on by the appellant. The mortgage in that case was a simple one which provided that the debt was to be repaid in 8 years and that on failure to pay the interest accruing every year or the principal at the end of 8 years, the mortgagee could take possession of the lands mortgaged. After the expiry of this period the mortgagor received an additional sum of Rs. 250 from the mortgagee and released the equity of redemption to him. The mortgagor sent a petition to the Tahsildar for issuing patta to the mortgagee. It was held that there was no principle of law which prevented the parties from agreeing that the character of the possession to be held by the mortgage should be from a certain date. This decision has no application to the present case. The mortgagee originally was one without possession and possession was surrendered as a result of an agreement that such possession should be as owner of the land. The following observations from the judgment show that the principle laid down by the Privy Council was upheld: