K GOPALAN THANTHRI Vs. ITTIRA KELAN

JUDGEMENT

(1.) In Mathew v. Ayyappankutty, 1962 Ker LT 61 = (AIR 1962 Ker 164) (FB), a Full Bench of this Court held that the sale of tarwad property by the karnavan of the tarwad to a mortgagee in possession alters the character of the latter's possession so as to include within its scope the interest of the mortgagor tarwad with the result that, notwithstanding that the sale was an invalid sale not binding on the tarwad, a suit for redemption would be barred after twelve years of such altered possession. That is precisely the case here. It was in 1926 that the karnavan of the tarwad to which the property in suit belonged sold the property to the 1st defendant mortgagee who was in possession. The sale was invalid for want of the written consent of all the other adult members of the tarwad as required by Section 21 of the Travancore Ezhava Act by which the tarwad was governed and which had come into force a few months before the sale -- only the senior anandaravan had given his written consent by subscribing to the sale deed and there were admittedly two other adult members of the tarwad at the time. It was only in 1951, twenty five years later, that the plaintiff brought his suit for redemption on the strength of a purchase a few months earlier from the then surviving members of the tarwad.

(2.) With great respect we think that 1962 Ker LT 61 = (AIR 1962 Ker 164) (FB) was rightly decided and we are able to see nothing in AIR 1963 SC 70 (which has been dis-tinguished by the learned Single Judge) that calls for a reconsideration thereof.

(3.) When an interest is carved out of property, as, for example, by the grant of a mortgage or a lease or other restricted interest therein, two distinct and separate interests come into being, each by itself a distinct subject of property which can be the subject-matter of independent possession. (See Khiarajmal v. Daim, (1905) ILR 32 Cal 296 at pp. 311 and 312 (PC)). True, in the case of a possessory mortgage, the mortgagee is in possession of the tangible property. But that means no more than that he is in possession of the mortgage interest; the mortgagor owner continues in possession of what remains after the transfer effected by the mortgage, namely, what is usually and conveniently called the equity of redemption, just as the landlord continues in possession of the reversion notwithstanding that the tenant is in possession of the tangible property.