KATHAVAL SUDALY Vs. ARUMUGHA PANICKER

JUDGEMENT

(1.) This is an appeal by the plaintiff under S.21 (1) of the Travancore-Cochin High Court Act, 1125 (Act 5 of 1125) against the judgment and decree passed by T.K. Joseph, J. on 24-3-1954 in S.A. No. 227 of 1125. Affirming the concurrent decisions of the Principal District Munsiff of Nagercoil in O. S.No. 387 of 1122 and of the Second Judge of Nagercoil in appeal there from (A. S.No. 92 of 1124) the learned Single Judge dismissed the said second appeal, but at the same time declared that the case was a fit one for a further appeal to a Division Court of two JudgeS.The plaintiff has accordingly brought the present appeal. The facts giving rise to the suit (O.S. 387 of 1122) out of which the appeal arises are as follows:-

(2.) The plaint property belonged to the tarwad of the plaintiff and defendants 2 to 5. In 1069 the then Karnavan of the tarwad granted an Otti with respect thereto to one Neeli for a consideration of FS.700. In 1075 Neeli assigned her Otti right to one Valli and while the latter was thus in possession and had effected various improvements such as buildings etc. the Karnavan granted a fresh Otti to her for a consideration of FS.1000, out of which FS.700 represented the consideration for the earlier transaction. This was in 1089, but in 1092 defendant 2 to the present suit, who is none other than the present plaintiffs mother, and defendant 3, her daughter, brought a suit (O.S.393 of 1092, Nagercoil District Munsiffs Court; to set aside the latter Otti deed on the ground that it was not supported by consideration or tarwad necessity. In that suit the plaintiffs thereto offered to redeem the Otti of 1069 and the court granted them a decree virtually in terms of their plaint. That is to say, the Otti deed of 1089 was set aside and the plaintiffs were allowed to redeem the earlier Otti transaction on behalf of the tarwad on payment of the consideration thereof namely FS.700 and value of improvements amounting to FS.7328-2 Chakkrams and cash The decree bears the date 20th Kumbham, 1094 (3-3-1919). Ext. III is a copy of the decree. The decree holders however did not take out execution in time and the decree therefore got barred by limitation. Wellnigh 28 years after the date of the decree (O.S.393 of 1092), on 18-5-1122, the present appellant who as mentioned earlier, is the son of plaintiff 1 in the former suit, brought this suit for redemption of the Otti of 1089. In the meanwhile, in 1118 or thereabouts, defendant 1 had purchased the rights which Valli had in the property. Defendant 1 contested the suit. The Principal District Munsiff, Nagercoil before whom the suit came up for trial dismissed it on the ground that it was unsustainable inasmuch as the Otti deed of 1089 had been set aside in the prior suit and the suit was therefore one to redeem a non existing Otti. This decision was affirmed in appeal by the learned Second Judge of Nagercoil and by T. K. Joseph, J. in the second appeal brought against the Second Judges decision.

(3.) In this further appeal brought on the strength of the certificate granted by Joseph, J. Mr. M Madhavan Nair appearing for the plaintiff appellant contended that as the decree annulling the Otti of 1089 had got barred by limitation the mortgagee or her assignee, as the case may be, had by continued possession of the property for more than 12 years obtained a title by prescription to the said Otti right and that it was therefore open to his client to seek redemption thereof on payment of the Otti money and Value of improvements, if any. The contention was that by allowing the former decree to get barred the tarwad had only lost the benefits conferred by it, that is, to obtain possession of the property by payment of the consideration for the earlier Otti deed and value of improvements and that the loss of that right would not preclude the tarwad from seeking redemption of the Otti of 1089 even though that stood annulled by a decree. This contention is supported by the decisions in Numku Pillai v. Shudalaimuthu Subrahmonian XV TLR 172 - and Kochappi Amma v. Pathummal - 1948 TLR 1008. The principle of those decisions is a well recognised one and it is, that a party entering upon possession of a property under an alienation which does not purport to effect an absolute transfer in the property, would in the event of that transfer turning out to be invalid, obtain by continued possession a prescriptive title only to that limited right. See Purusottam Das v. Desouza, AIR 1950 Orissa 213, Palania Pillai v. Amiath Ibrahim, AIR 1942 Mad. 622 F.B., and Ghassu v. Babu Ram-AIR 1944 Allahabad 25 F. B. However, as pointed out by Mr. P. Govindan Nair, the learned Counsel for respondent 1 (defendant 1), the principle of those decisions is clearly inapplicable to the present case.