(1.) THIS is a Letters Patent appeal from the judgment of Mr. Justice Wassoodew in Second Appeal No.713 of 1934.
(2.) THE material facts are as follows -:-THE suit land was mortgaged with possession to one Tippanna by Venkatrao the manager of a joint family on May 2, 1877. In September, 1877, by reason of certain awards the equity of redemption fell to the share of the other branches of the family of Venkatrao now represented by the plaintiffs, who have sued to redeem the mortgage. THE mortgage deed provided that the mortgagee was to pay a net sum of Rs. 82-2-0 to the mortgagor. In spite of the awards in 1877 this annual payment was made first to Bhimrao the son of Venkatrao, and afterwards to defendant No.4, the son of Bhimrao, never to the plaintiffs. Bhimrao and defendant No.4 claimed to be entitled to the equity of redemption, and the mortgagee recognised that claim. THE plaintiffs were presumably aware of the fact that the moneys due to them were being appropriated by defendant No.4. In 1918 the heir of the mortgagee executed a lease in favour of defendant No.4 agreeing to pay an enhanced rent.
(3.) IT was held on these facts (1) that Narsubai was in adverse possession of the equity of redemption up to 1856, and (2) that Ramappa was in adverse possession thereafter. Ramappa had actual possession ousting the mortgagee so that in that respect the facts were different from those of the present case. But up to 1856 the morgagee was in possession of the mortgaged property, and yet it was held that even during that period Narsubai was in adverse possession of the equity of redemption by reason of the fact that she claimed to be entitled to it and received rents which were payable to the mortgagor tinder the terms of the mortgage.