BALASUBRAMANIA THEVAR Vs. KUMARASWAMI THEVAR ALIAS PONNUSWAMI THEVAR ALIAS GOVINDA-SWAMI THEVAR AND ANOTHER

JUDGEMENT

(1.) This is rather a curious case and for the reasons which will presently appear, this second appeal should be allowed and the suit for redemption dismissed. The suit was for redemption of two mortgages, one executed by the plaintiff on 19th April 1919 and the other by his brother, one Mariappa Thevar on 21st April 1925, in favour of one Palappa Thevar, father of the defendants. The suit was resisted by the defendants on several grounds one of which was that Mariappa was dead and that it must be presumed that his brother Kumaraswami alias Ponnuswami was also dead as his whereabouts were not known for over twelve years. The other ground of defence was that the defendants and their father had been admittedly in possession of the suit properties from 1927. They put forward a case of oral sale. It was not accepted by both the Courts below and this finding is no longer under challenge. The Courts below also found the identity of the plaintiff and repelled the defendants' case that they had acquired title by adverse possession and that the suit for redemption was barred by limitation. The suit for redemption was, therefore, decreed and the defendant's appeal was unsuccessful. They are the appellants in this Court. Though the question of identity of the plaintiff is one of fact, learned Counsel for the appellants attacked it on the ground that it is not supported by any evidence. During the course of arguments before me 1 felt a great deal of suspicion as to whether the mortgagor under the document dated 19th April 1919, is really the plaintiff in the action. In that document the mortgagor figured as a marksman. But the plaintiff in the suit signs his name as C. Kumaraswami. There is no oral evidence directly proving that the plaintiff is the actual person who executed the mortgage in 1919. The only evidence on the question of identity is that of P.Ws. 1, 3 and 4. If I were sitting as a first appellate Court, I would not have had the slightest hesitation in rejecting their evidence. But their evidence has been accepted by the lower appellate Court and sitting as I do in second appeal, I shall not disturb that view of the acceptability of the oral evidence but on the question as to the value to be attached to the evidence, I am not at all certain that it proves that the plaintiff in the suit was the person who executed the mortgage in 1919. As a matter of fact, P.W. 1 in cross -examination admitted that he did not know personally if plaintiff was alive when he gave evidence. No doubt, P.W. 3 stated that he saw one Kumaraswami, a pangali of Chockalingam in 1952 and again in September 1958, but he did not speak to whether Kumaraswami whom he referred to related to the mortgagor in 1919. When the question of the identity of the plaintiff is raised, one would have accepted the plaintiff to present himself in Court and clear the matter of all doubt. But that was not done, I have seen some of the letters produced as having been written by Kumaraswami. Not all of them have been signed by him, and I am not satisfied that the signatures tally. It appears that summons in the second appeal were served on one Kumaraswami through the Process Server of the Supreme Court of Singapore. Learned Counsel for the plaintiff himself has, as stated in Court, never corresponded with him but only through P.W. 4. It may be that there is a person in Singapore having the name of Kumaraswami but the evidence on record leaves in my mind deepest suspicions whether the plaintiff is the real mortgagor under the document of 1919. But being a second appellate Court with reluctance I have to leave the concurrent finding on the question of identity undisturbed.

(2.) The second point pressed on behalf of the appellant relates to limitation. The defendants pleaded an oral sale by virtue of which their father came by possession of the suit properties. This case did not find acceptance in the Courts below. Nor would they hold that the defendants and their father trespassed upon the properties but they were inclined to think, especially, the lower appellate Court, that defendants' possession through their father was probably traceable to a kind of permissive possession. This impression, the lower appellate Court formed on the circumstances that soon after executing the mortgages, both the brothers left this country for Singapore and never returned, that the mortgages bore a high rate of interest, one of them being as high as 24 per cent and that it was possible that defendants' father was let into possession by them on the understanding that he might appropriate the income from the lands in lieu of interest. Learned Counsel for the appellants strenuously urged that the defendants and their father having teen in continuous possession of the properties ever since 1927 it must be taken to be adverse and that the finding of the Courts below that possession was traceable to some kind of permission is not supported by any evidence. On a careful consideration I am inclined to accept this contention. One starts with this hard fact which is not even now disputed, namely, that the defendants and their father have been in possession ever since 1927 and that the mortgagee being simple did not entitle the mortgagee to enter upon possession. There is nothing literally in the evidence, oral or documentary to show that the mortgagee got into possession qua mortgagee. The mortgages were of the years 1919 and 1925. The circumstances of the case do not warrant the inference that the mortgages and the fact of the mortgagee getting into possession of the property formed part and parcel of one transaction. It may be mentioned that there is no basis for regarding the two as forming one transaction. The lower appellate Court when it negatived the case of trespass did not refer to any evidence on which it founded its view. When the facts are that the mortgagee who was not entitled to be in possession, has been in possession for a long time and it is not shown how the qua mortgagee got into possession, it is difficult to resist the conclusion that possession in the hands of the mortgagee was adverse more especially when there is no evidence whatever to support the case of permissive possession. Permissive possession was the definite and plain case which the plaintiff failed to establish. On these facts, I consider that the suit for redemption of the simple mortgages is barred by time.

(3.) It is, however, contended for the plaintiff -respondent, that once there is the relationship of mortgagor and mortgagee established, though the mortgage is not an usufructuary one, if the mortgagee, while that relationship subsisted got into possession, right or wrong, that will not enable him to treat his possession as adverse and prescribe an indefeasible title defeating the right of redemption. In support of this proposition reliance is placed on the decision in Audh Sing v/s. Nambai, 46 I.C. 872. There the Judicial Commissioner of Nagpur, no doubt, made certain observations to that effect, but I thick it is not clear from the reported judgment whether the mortgagee entered upon possession, qua mortgagee. Apparently the observations were made on the assumption that the mortgagee entered upon possession in that character. Reference was also made on behalf of the plaintiff -respondent to Raja Tirumal Raju v/s. Pandi Muthia Naidu, 32 Mad. 114. But this is clearly a case of usufructuary mortgage and it does not, therefore, assist him. I think the decision in Venugopal Rao v/s. Hanumantha Rao : A. I. R. 1958 A. P. 541 cited for the appellants is mote in point particularly on facts. There, a Division Bench of the Andhra High Court lock the view that in the absence of an understanding between the mortgagee and the mortgagor as to the former taking possession on certain terms following a simple mortgage and in the absence of the mortgagee entering upon possession qua mortgagee, if the mortgagee has been in possession for more then twelve years subsequent to the date of the simple mortgage, the suit for redemption would be barred. In that case too the plea on behalf of the plaintiff was that possession of the defendant was permissive at the inception and' therefore no question of adverse possession would arise but the learned Judges noted that the plea was not acceptable and it was found that the mortgagee entered upon possession not as mortgagee. No doubt in that case there was evidence to show that the simple mortgagee entered upon possession as owner unlike in the present case where the case of the defendants of oral sale was not accepted. But that I think can make no difference in this case as the defendants and their father have had possession with them ever since 1927 and there is no evidence that this was traceable to any permissive possession. Differing from the Courts below I hold that the suit for redemption is barred by limitation. The second appeal is allowed, the judgment and decree of the Courts below are set aside and the suit is dismissed, but with no costs. No leave.