S KANTHIMATHINATHA PILLAI Vs. VAYYAPURI MUDALIAR

JUDGEMENT

(1.) THIS appeal by the plaintiff in a suit for recovery of possession with mesne profits, involves a question of considerable interest. We may take the following facts as established beyond controversy by the record. One Velayudhan Pillai, the original owner of the suit property, died on 6-1-1954, leaving a registered will. After the death of this testator, the common ground now between the parties is that his widow Ramu Ammal held the property in her own right, according to the stridhana law of succession. Her daughter Kanthimathi Ammal succeeded to the property after Ramu Ammal, and the parties are agreed that, according to the law of Hindu Mitakshara succession, Kanthimathi Ammal had only a life interest. This kanthimathi Ammal executed a usufructuary mortgage in respect of the suit property, the assignee of which, ultimately, was the 13th defendant in the suit. Kanthimathi Ammal was alive when the Hindu Succession Act XXX of 1956 came into force. She died on 7-2-1957, without issue. The plaintiff (appellant) instituted the suit for recovery of possession as against the usufructuary mortgagee in possession (13th defendant) on the following basis. Kanthimathi Ammal was, admittedly the holder of a. limited or life interest. She could certainly create a usufructuary mortgage over the property, but, ordinarily, that interest would not subsist in favour of the mortgagee beyond her lifetime. Under those circumstances, the plaintiff broadly pleaded, both as the reversioner of Velayuthan Pillai and as the actual heir of this Kanthimathi Ammal, that he was entitled to possession of the mortgaged property.

(2.) THE usufructuary mortgagee (respondent) contested the suit upon certain grounds which we shall immediately examine. In the trial court, the suit was decreed. In the first appeal, the learned District Judge of Tirunelveli observed, and the corredness of this observation is not in dispute, that the lower court was in error in thinking that Section 14 of Act XXX of 1956 did not enlarge the limited interest of Kanthimathi Ammal in the suit property to an absolute interest. The learned Judge pointed out that the word "possession" as occurring in Section 14 of the Act, would imply possession of any character or category recognised by law, and not merely physical possession. As I have stated it, the parties now do not dispute that the interest of Kanthimathi Ammal became enlarged to an absolute interest before her death.

(3.) THE following questions obviously arise for determination, before, the mortgagee (respondent) could be called upon to surrender possession to the plaintiff, whether the plaintiff be viewed as the reversioner of Velayuthan Pillai, or as the heir of Kanthimathi Ammal. Before formulating the questions that arise for determination, I may clarify one of two ancillary issues of fact. Firstly, it was well established that plaintiff was the heir of Kanthimathi Animal, in addition to being the nearest reversioner of Velayuthan Pillai. Secondly, no attempt was made to show that the usufructuary mortgage, Ex. B. 1, wat executed for any necessity, which would ordinarily bind the reversioner to a Hindu widow, or other limited holder of a woman's estate. It is sufficient to set forth the following observation from paragraph 16 of the judgment of the first court: "no attempt has been made to show that Ex. B. 1 was executed for any necessity. " we may hence take it (1) that plaintiff is the heir of Kanthimathi Ammal and (2)that the assignee (13th defendant) cannot plead, on the facts of the record, that the mortgage was executed for legal necessity which would bind the reversioner to the limited owner.