PARTHASARATHI NAIKAN ALIAS SUBBIAH NAIKAN Vs. LAKSHMANA NAICKEN

JUDGEMENT

(1.) The suit is to recover, by sale of the mortgaged property, the amount remaining due under a registered simple mortgage-bond executed in favour of the Ist plaintiff by the paternal grandfather of defendants Nos. 1 and 2 in 1871. It is found that in execution of a simple money-decree obtained against the mortgagor, after the execution of the mortgage-bond (the suit property was attached and sold in Court auction), that delivery was obtained by the purchaser in 1873, and that thereafter the property was held by him and those claiming under him adversely to the mortgagor, so that, before the present suit was brought, the mortgagor s right to the property had become extinguished. It was contended that the plaintiff s mortgage- right had also become extinguished, at the same time as the right of the mortgagor. The District Judge negatived the contention and the main question in this appeal which is by defendants Nos. 1 and 3 to 5, is whether the District Judge was wrong in so doing.

(2.) It will be observed that under his mortgage the plaintiff was not entitled to possession and that the mortgage was created before adverse possession had begun to run against the mortgagor. A number of cases have been cited by the appellants in support of their contention, and it will be convenient first to consider these cases and see whether they really do support the appellants. In Anundo Moyee Dossee v. Dhonendro Chunder Mookerjee 14 M.I.A. 101 : 8 B.L.R. 122 : 16 W.R. 19 one Sree Nath Manick in 1841 mortgaged certain property to Mutty Lal Seal, who brought a foreclosure suit and purchased the property with the sanction of the Master of the Supreme Court at Calcutta. He failed to get possession and his executors sued the defendants for possession. It was found that prior to the mortgage the property had been attached in execution of a decree and that the defendants had purchased it in the sale that followed. Their Lordships of the Privy Council, therefore, held that the title of the defendants, independently of the Regulation of Limitations, was paramount and Superior to the title of the mortgagee. They added, however, that even if the attachment had been posterior to the mortgage, still the Regulations of Limitations would have been a conclusive bar. They pointed out that a purchaser at a Court-sale who has no notice of a mortgage on the property purchased, thinks he is acquiring the absolute title to the property and that he is in possession as absolute owner. They then proceeded thus,--"Under these circumstances they are of opinion that if the title of the mortgagee to enter by reason of a default having occurred before, had accrued, and if the purchaser under such a title had been in possession for 12 years believing himself to be a bona fide owner under a claim to the ownership of the property and not being in possession in any way as mortgagor or under the mortgagor then in accordance with the cases...they are of opinion that the suit to disturb the possession of such a purchaser ought to be brought within the 12 years after the commencement of his possession." This decision is manifestly an authority for the appellant s contention but is rather against it. Their Lordships were dealing with a case in which the mortgagee had apparently a right to enter into possession of the mortgaged property on the mortgagor s default, and their conclusion is based not only on the purchaser s possession for 12 years, but also on the right of entry having accrued to the mortgagee, and I understand their Lordships to mean that time did not begin to run against the mortgagee until the right of entry had accrued. The decision is thus in accordance with the general rule that adverse possession begins to run against the true owner when the true owner has the right to immediate possession--See the definition of adverse possession given by Markby, J., in Bejoy Chunder Banerjee v. Kalli Prosonno Mookerjee 4 C. 327.; Brojonath Koondoo Chowdhry v. Khelut Chunder Ghose 14 M.I.A. 144 : 8 B.L.R. 104 : 16 W.R. 33 was also a case in which the mortgagee had a right of entry on the mortgagor s default. Default occurred, but the mortgagor was left in possession and sold part of the property mortgaged. The purchaser took possession. Their Lordships observed,--"It is impossible to hold that the defendant, the purchaser, was holding, or supposed he was holding by the permission of the mortgagee; and when both things concur--possession by such a holder for more than 12 years, and the right of entry under the mortgage-deed more than 12 years old--it is impossible to say that such a possession is not protected by the Law of Limitation." This decision no more supports the appellant s contention than the decision last quoted. The remarks at page 151 of the report also clearly apply only to mortgagees who are entitled to possession, for they refer to mortgagees who allow the mortgagor to be the ostensible owner in possession. In Ammu v. Rama Krishna Sastri 2 M. 226 the following passage occurs: Bat there are other cases in which the rights and interests of the mortgagor and the mortgagee are equally invaded, e.g. when the mortgagor has remained in possession and a stranger ousts him from the lands." The mortgage in that case was a mortgage under which the mortgagee was entitled to possession, and we are not bound to assume that the learned Judges intended their remarks to apply to a mortgagee not entitled to possession under his mortgage. The words when the mortgagor has remained in possession" are quite consistent with a case where the mortgagee, though entitled to possession, has not taken possession. The passage cannot, therefore, be regarded as an authority for the appellant s contention. In Nallamuthu Pillai v. Betha Naicken 23 M. 37 the mortgagee was not entitled to possession under his mortgage. Adverse possession had, however, begun to run" against the mortgagor before the mortgage was granted ami such possession was treated as adverse to both mortgagor and mortgagee. In the present case, adverse possession had not begun to run against the mortgagor, when the mortgage was granted, so that the case cited is clearly distinguishable. In the case cited the fact that the mortgagee was not entitled to possession made no difference, for time had begun to run against the mortgagor when the entire interest in the property vested in him, and nothing subsequently occurred which could have the effect of interrupting the running of time. Thus, both the mortgagor and the mortgagee who derived title from him, were equally barred. In Ram Lal v. Masum Alikhan 25 A. 35 also, the property mortgaged was held adversely to the mortgagor at the date of the mortgage. In Sheoumber Sahoo v. Bhowaneedeen Kulwar 2 N.W.P.H.C.R. 223 the mortgage was a mortgage by conditional sale which was to become absolute in two years on certain terms. The suit was for possession under the mortgage, and was resisted by persons who did not claim under either the mortgagor or the mortgagee, on the ground that they had been in adverse possession for 12 years. In holding that the suit was barred the High Court observed,--"where possession of the property alleged to have been mortgaged has been taken by a third party who does not claim under the alleged mortgagor, and has been held by such third party adversely to the mortgagee, the mortgagee is bound to come in within 12 years to vindicate his right." The possession in that case was evidently held to be adverse to the mortgagee but as the facts are not set out in detail we have to conjecture as to the circumstances which were considered to render the possession adverse. The case is distinguishable because the mortgagee was entitled to possession under his mortgage. Further, we do not know when the defendant s possession began, a most important consideration as already pointed out. Prannath Roy Choudhry v. Rookea Begum 7 M.I.A. 323 4 W.R. 37 was also a case of mortgage by conditional sale and so distinguishable. The appellants rely on the following remarks at page 355,--"Where a mortgage is subject by law to be foreclosed the title to foreclose is in the nature of a limit to the title to redeem. It by no means follows as a consequence that the mortgagee foreclosing will be able in a suit for possession to make good against all occupants a title to possession." There is nothing in this to support the appellant s contention. As already indicated, there are cases in which a mortgagee can be successfully met by a plea of adverse possession. Ram Coomar Sein v. Prosunno Coomar Sein (1864) W.R. 375 is also not in point for there the mortgagee was entitled to sue for fore-closure and possession before the adverse possession which was pleaded as a defence to his suit began.

(3.) Much stress has been laid upon Karan Singh v. Baker Ali Khan 5 A. 1 : 9 I.A. 9. There the mortgage was created in 1862 and was a simple mortgage, so that so far the case is on all fours with the present case. The defendant s own possession was found to have commenced in 1864 that is after the mortgage. As, however, this possession did not extend over twelve 2 M.W.N. 209 : 9 M.L.T. 264 : 9 Ind. Cas. 28 years he sought to tack on the possession of the Collector which began in 1861 before the mortgage on the ground that the possession of the Collector was possession on his behalf and adverse. Their Lordships of the Privy Council observed with reference to the rule of limitation that it was not for the plaintiff, the mortgagee, to prove possession within 12 years but that his suit might be brought within 12 years from the time when the possession of the defendant became adverse to the plaintiff. They then pointed out that the defendant had not been in possession for 12 years and that he could not take on the Collector s possession from 1861 to the time when in 1863 the Collector delivered possession to him, inasmuch as since the Collector did not hold for him he did not claim through the Collector. They did not enter, nor was it necessary to enter upon the question whether the defendant s possession from 1863 standing by itself should be considered adverse to the mortgagee. It is suggested that we must infer that they considered that possession adverse because they went into the question whether the defendant was entitled to tack the Collector s possession. Such an inference is not a necessary inference in the circumstances. Had the Collector s possession which began before the mortgage been adverse to the mortgagors and had the defendant claimed through the Collector then the mortgagee s suit would have been barred as in Nallamuthu Pillai v. Betha Naickan 23 M. 37. This supplies a reason why it was considered necessary to consider the question of tacking.