SARVOTAMA KAMATH Vs. ABDULLA BEARY

JUDGEMENT

(1.) THE plaintiff is the appellant. The suit out of which this appeal arises is a suit for redemption of a usufructuary mortgage, Ex. A -1, dated 24 -7 -1907 executed by two ladies, Parameshwari and Devamma, in favour of Raghuvayya, for a sum of Rs. 550 the period fixed for payment being thirty years. The right to redeem the property, would therefore accrue in 1937. The following genealogical table may be helpful in appreciating the facts of this case :

(2.) THE suit was mainly resisted on the ground that it is barred by limitation, the contention being that by reason of the transactions covered by Exs. B -9, B -10 and B -63 the suit Is barred by Article 134 as more than twelve years had elapsed since the date of those documents, slice a suit to recover possession of such immoveable properties mortgaged and afterwards transferred by the mortgagee for valuable consideration is governed by Article 134. As regards the other properties which were the subject -matter of the mortgage Ex. A -1, the contention is that they are barred by Article 144 as Devamma subsequent to the death of her mother Parameshwari, and thereafter Raghavayya have been in possession as absolute owners and have therefore prescribed title by adverse possession. The trial Court rejected both the contentions and granted a decree. In appeal the learned District Judge took a contrary view on both these questions.

(3.) AS regards the other properties not covered by Exs. B. 9, B. 10 and B. 63, I am unable to follow the reasoning of the learned District Judge in holding that Article 144 is a bar. It is well established that so long as the mortgage subsists, a person who has come into possession as mortgagee cannot by setting up, during the continuance of such relation, any title adverse to that of the mortgagor inconsistent with the real legal relation between them and that however notoriously and to the knowledge of the other party acquired by the operation of the law of limitation, title as owner, or any other title inconsistently with that under which he was let into possession, vide Seshamma Shettati v. Chikaya Hegada, ILR 25 Mad 507. The argument on behalf of the respondents and the reasoning of the learned District Judge is that Devamma who had no right to the property as Parameshwari alone was the heir of the last male holder, having joined in the execution of the mortgage representing that both were entitled to the property and subsequently, after the death of Parameswari she having dealt with the property as full owner by selling them to Raghavayya. Raghavayya as purchaser continuing in possession has prescribed title by adverse possession. But for Devamma's Joining in the mortgage Ex. A. 1 and her transaction of sale, Ex. B. 7 this argument would not be open to the respondents. But if a person who has no title to the property purports to deal with the same and professes to sell the property to a mortgagee, would it change the character of possession of the mortgagee or the nature of the property is the question. In so far as the persons that are rightfully entitled to the property are concerned, namely, representatives of the mortgagors, Raghuvayya cannot prescribe any title by adverse possession against them, for the reason that his possession could be only as a mortgagee in so far as the mortgagors are concerned, and the character of Raghavayya's possession must therefore be considered to be that of a mortgagee's possession unless it is shown that any such acquisition of possession as owner had been recognised by the rightful heirs, in which event It might be contended that the persons who are parties to such acquiescence might be estopped from contending to the contrary. But in this case it is urged that Giriya and Appayya were examined in connection with a dharkast of the adjoining land and certain statements made by them, Ex. B. 49, were relied upon. I have gone through Ex. B. 49; but it does not relate to any question of transfer of title. The statement made by Giriya and Appayya relates only to the grant of softie additional rights to possession relating to the subject matter of the mortgage and the adjoining property. In the circumstances, I am unable to find any conduct on the part of Appayya or Giriya to show that they recognised the title of Raghuvayya as full owner. So long as the mortgage subsists and the right to redemption has not become barred, I am unable to understand what steps a reversioner, who is no doubt entitled to possession on the death of the limited estate holder, could take to assert his rights, as the only right he could assert is to ask for possession, which right he could assert before the expiry of the period for a suit for redemption of a usufructuary mortgage, which in this case would be more than sixty years in view of the thirty years' period granted under Ex. A. 1. The suggestion of the learned Judge that the reversioner should have filed a suit and obtained symbolical possession is not correct. On the facts of this case I am unable to hold that in so far as the properties not covered by Exs. B. 9, B. 10 and B. 63 are concerned, it could be said that the plaintiff as purchaser of equity of redemption has lost his right to redeem the property by limitation or otherwise.