PARTHASARATHY NAICKEN ALIAS SUBBIAH NAICKER Vs. LAKSHMANA NAICKER

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 first plaintiff by the paternal grandfather of defendants at Original Suits 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 bad also become extinguished at the same time as the right of the mortgagor. The District Judge negative the contention and the main question in this appeal, which is by defendants Nos. 1 and 3 be 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 (1871) 14 M.I.A 101 one Sreenath Mulliell in 1841 mortgaged certain property to Mutty Lalseal, who brought a foreclosure suit and purchased the property with the section 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 bad 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 Regulations 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 sate 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 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 twelve years, believing himself to be a bond fide" owner, under a claim to the ownership of the property and not "being in possession in any way an mortgagor or under the mortgagor, then in accordance with the cases...they ate of "opinion that the suit to disturb the possession of such a purchaser "ought to be brought within the twelve 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 bused not only on the purchaser s possession for twelve 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. Kally Prosonno Mookerjee (1819) I.L.R. 4 Calc. 327, Brojonath Koondoo Chow-dry v. Khelut Chunder Ghose (1871) 14 M.I.A 144 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 ho was holding by the permission of the mortgagee, and, when both things" concur--possession by such a holder for more than twelve years "and the right of entry under the mortgage deed more than "twelve years old--it is impossible to gay that such a possession is "not protected by the Law of Limitations." 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. Ramakrishna Sastri (1879) I.L.R. 2 Mad. 220 the following passage occurs: "But there are other cases in which the rights "and interests of the mortgagor and mortgagee are equally invaded, "e.g... when the mortgagor has remained in possession" and a stranger ousts him from the land?." 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 whore the mortgagee though entitled to possession has not taken possession. The passage cannot therefore be regarded as an authority for the appellant s contention.

(3.) In Nallamuttu Pillai v. Betha Naickan (1900) I.L.R. 23 Mad. 37 the mortgagee was not entitled to possession under his mortgage.