SUNDARA GURUKKAL Vs. SUBRAMANIA ARCHAKAR

JUDGEMENT

(1.) This is a suit to redeem a usufructuary mortgage of the office of Archaka in a temple together with the lauds attached to that office. The mortgage was in the year 1822. Defendants Nos. 1 and 2 have been found to hold under the mortgage sat up by the plaintiff. The 3rd defendant claims his right through original mortgagee. He must also be, therefore, treated as holding under the mortgage. The District Munsif dismissed the suit. On appeal, the Subordinate Judge held that the plaintiff s right to recover was not barred by limitation as the defendants never setup an absolute right either to the office or to the lands but claim to hold them only as mortgagees.

(2.) In second appeal, it is contended that the office of Archaka and the lands attached to such office being untransferable, the Court should not assist the plaintiff to recover the lands which were transferred by an instrument which must be treated as illegal. No authority has been cited in support of the proposition that, where a transfer is void, the transferee can successfully defend a suit by the transferor for the recovery of the property transferred. The result of the transfer being void would be not to vest the property in the transferee at all and the property would continue to remain in the transferor. There is no reason why the plaintiff should be held to be disentitled to recover. It is now settled law that a person does not by virtue of adverse possession, acquire a higher title than he has prescribed for. The defendants in this case never prescribed for the ownership of the office or the lauds. They could not, therefore, by prescription, acquire their ownership.

(3.) The Subordinate Judge acted on the footing that the defendants acquired a mortgagees s right by prescription. Ordinarily, no doubt, a usufructuary mortgagee s right could be acquired by adverse possession. It is unnecessary to consider whether the case of property not transferable according to law would be an exception to this rule, No objection is taken before us to the decree declaring the defendants entitled to receive the amount due according to the document of 1882. It is enough to say that the defendants certainly have not acquired an absolute right to the office or to the lands and cannot contest the plaintiff s right to recover possession of them.