RUPA NONIA Vs. RAM BRICH PATHAK

JUDGEMENT

(1.) In the suit which is the subject-matter of this appeal the plaintiff alleged that he and Ramasis executed an unregistered rehan bond on the 30th January, 1913, for a sum of Rs. 800/- in favour of one Ram Sahay Pathak with regard to 11 bighas and odd of kasht land situated in mauza Tar. After the last Survey and Settlement operations there was a disruption in the joint family of the plaintiff and the shares of the mortgage money payable by different branches of the joint family were paid off and only the share of the plaintiff, which was one fourth, remained to be redeemed. The plaintiff alleged that he tendered the amount of Rs. 200/- to the defendants in Jeth, 1337 Fasli, but the defendants refused to accept the same and later on the plaintiff deposited the amount in the court of the 1st Munsif of Arrah. Then notice of the deposit was duly served upon the defendants, but they refused to withdraw the money or give up possession of the mortgaged land. Defendant No. 2 contested the suit on the ground that the mortgagees were in possession of the disputed land for more than twelve years and so they had acquired an absolute title and there was no relationship of mortgagor and mortgagees between the parties. Upon these rival pleadings the learned Munsif held that there was a valid deposit made by the plaintiff under Section 83 of the Transfer of Property Act, but the plaintiff was not entitled to redeem because the mortgage bond was an unregistered document and there was no relationship of mortgagor & mortgagees between the parties. The learned Munsif accordingly dismissed the suit. An appeal was taken by the plaintiff to the lower appellate Court, but the appeal has been dismissed.

(2.) The main argument on behalf of the plaintiff is that though the rehan bond of the 30th January, 1913, was an unregistered document, the plaintiff is entitled to redeem, because the defendants had been in adverse possession of the land as mortgagees and had acquired title of mortgagees to the disputed land and so the plaintiff is entitled to redeem. In support of this argument reference was made on behalf of the appellant to the admission of defendant No. 2 in the lower court and also in Title Suit No. 78 of 1947 that since the execution of the unregistered rehan bond the defendants were in possession of the suit land as mortgagees. Reference was also made on behalf of the appellant to the decision of this Court in Sukra Oraon v. Jagat Mohan Singh, (S) AIR 1957 Pat 245, where it was held that even where the mortgage was not a valid transaction because of non-compliance of Section 59 of the Transfer of Property Act, still the defendants who were inducted on the property as mortgagees acquired the character of mortgagees because of prescription when it was proved that they were holding the said property in that character during the period of prescription, and in such a case the mortgagor was entitled to a decree for redemption. In my opinion, the argument of the appellant on this point is well founded and must prevail. It has been found by the lower courts that the mortgagees had entered possession of the disputed land not on the assertion of any absolute title but in the character of mortgagees. That was also the admission of defendant No. 2 in his evidence before the lower court and in Title Suit No. 78 of 1947. It is, therefore, clear that the defendants are in possession of the land in the status of mortgagees, and so it must be held that in spite of the nullity of the mortgage dated the 30th January, 1913, the defendants had acquired the status of mortgagees by the doctrine of prescription. On behalf of the respondents reference was made by Mr. G. C. Mukherji to Bhukhan Mian v. Radhika Kumari Debi, 19 Pat LT 489: (AIR 1938 Pat 479 )where there is an observation of Wort J. that the rights of a mortgagee cannot be acquired by prescription Manohar Lall J. agreed with Won J., though he said in the course of his judgment that it was not necessary to consider whether the defendant can ever be held in law to be able to prescribe against a true owner his rights as a mortgagee. This question did not really arise for decision in that case, because the entry in the record-of-rights was of the year 1921 and the period of twelve year; from that starting point had not expired when the suit was instituted in 1933. Any observation made by either Wort J. or Manohar Lall J. on this question is, therefore in the nature of obiter dictum and not in the nature of ratio decidendi. I should however, make it clear that the observation of their Lordships on this point is not correct. As pointed out by a subsequent Bench of this Court in (S) AIR 1957 Pat 245, their Lordships failed to notice in 19 Pat LT 489: (AIR 1938 Pat 479), that the possession of a mortgagee under a void mortgage was permissible so far as the absolute title was concerned, and adverse only in so far as the limited interest was concerned, and the learned Judges further failed to bear in mind that the mortgagee's interest was an interest in immoveable property and not merely a contractual security for a loan, and that adverse possession and prescription is as much a root of title to interest in immoveable property as a contractual document satisfying the requirements of the Transfer of Property Act. The decision of their Lordships in 19 Pat LT 489: (AIR 1938 Pat 479) was also criticised in similar terms by Jagannadha Das J. in Purshottam Das v. S. M. Desouza, AIR 1950 Orissa 213 as follows : "In AIR 1938 Pat 479, the learned Judges however held that a person cannot prescribe for a limited interest like a tenancy or a mortgage. With great respect, I am unable to persuade myself that that proposition is correct. On the facts of that case, the question itself did not arise for a direct decision as pointed out by Manohar Lall J. at page 482, right-hand column where the learned Judge staled as follows: 'If, as was argued, the defendant must be taken to have prescribed his rights as a mortgagee from the date of this entry, it is enough to state that the period of 12 years from that starting point had not expired when the suit was instituted in 1933.' The dictum of the learned Judge was therefore obiter, but in view of the fact that both the learned Judges discussed the question on principle and were inclined to give their assent to the proposition as above stated weight and respect is due to that statement. On a close examination, however, of the reasoning of the learned Judges in support of the proposition, it is found that the same is based on two assumptions (1) that the position of the mortgagee under the void mortgage is adverse in the sense that it is entirely in derogation of the owners' full title; (2) that a mortgage interest can be created only by a contract as prescribed in the Transfer of Property Act. The learned Judges have failed to notice that the possession of the mortgagee under void mortgage is permissive so far as the absolute title is concerned and adverse only in so far as the limited interest is concerned. They have further failed to bear in mind that a mortgagee's interest is an interest in immovable property and not merely a contractual security for a loan and that adverse possession and prescription is as much a root of title to interest in immovable property as a contractual document satisfying the requirements of the Transfer of Property Act. That Section 28, Limitation Act, is operative not only to extinguish the title of the rightful owner, but to transfer the title to the wrongful possession is now well settled. See Gossain Das v. Issur Chander Nath, ILR 3 Cal 224; Akhauri Haliwant v. Deo Narain, AIR 1941 Pat 181 and Fakirappa Jotappa v. Ningappa Shidlingappa, AIR 1943 Bom 265. I am therefore unable with all due respect to follow the decision in AIR 1938 Pat 479 and I am definitely of the view that such a limited interest can be acquired by adverse possession." In my opinion, the correct view of the law has been taken in AIR 19.50 Orissa 213 and in a subsequent decision of this Court in (S) AIR 1957 Pat 245 and in view of those decisions the defendants have acquired in this case the title of mortgagees by prescription and the plaintiff is entitled to redeem the disputed land, namely, 2 bighas 15 kathas and 10 dhurs out of the land covered by the unregistered bond of 1913.

(3.) A point was, however, raised in the course of the argument as to whether and to what extent the invalid mortgage document itself can be used in evidence' to gather the terms of the mortgage. On that question there is a Full Bench decision of the Madras High Court in Appanna Nadapena v. Saripilli Venkatasami, ILR 47 Mad 203: (AIR 1924 Mad 292) in which it was held by a majority of the learned Judges that an invalid mortgage document could be referred to for ascertaining the nature and the character of the possession and that accordingly it may be referred to for determining the Quantum of interest for which the defendant prescribed. It is obvious that in determining the character of the possession the quantum of the interest under which possession is purported to have been taken has to be ascertained by reference to the document itself. That quantum of interest is necessarily defined and limited by the terms of the document itself. I think that an attempt to use that document for the purpose does not offend against Section 17 and 49 of the Registration Act or Section 91 of the Evidence Act. The attempt to use the document to prove the quantum of the interest prescribed for and the character of possession is not the use of the document for the purpose of enforcing the mortgage itself under the document. The document is not used as a source of the mortgagee's title--the title itself having been acquired by adverse possession and by prescription. On this point I would respectfully adopt the view of the learned Judges in ILR 47 Mad 203: (AIR 1924 Mad 292).