PERIA AIYA AMBALAM Vs. SHUNMUGASUNDARAM

JUDGEMENT

(1.) The first question that is referred to us is "where a trespasser dispossesses a mortgagor in possession (the mortgage being simple) or a mortgagee in possession (where the mortgage is usufructuary), is such possession of the trespasser adverse against the simple mortgagee in the one case or against the mortgagor who is not entitled to possession in the other case?".

(2.) The facts which gave rise to this reference are these: the plaintiff mortgaged his house with possession for a term which would expire in 1917. The mortgagee was dispossessed by the defendants in 1898. In 1908 they made certain additions to the building, and when the plaintiff remonstrated with them they denied the plaintiff s title to the equity of redemption. The plaintiff brings this suit for a declaration of his title within six years from 1908. The defendants plea is that limitation for the suit must be calculated from 1898, when they took possession of the property from the mortgagee.

(3.) On behalf of the plaintiff it may be argued that, as a mortgagor is not entitled to the possession of his property until he redeems his mortgage, the possession of a trespasser who dispossesses a mortgagee cannot be adverse to him and, in any event, as the mortgage in the case before us is for a term which has not expired, he could not redeem and recover possession from the trespasser; and limitation cannot run against him when there is no remedy open to him to recover possession of his property. Mr. Anantakrishna Aiyar contends that a mortgagor may sue to recover possession to be delivered to the mortgagee and therefore limitation runs against the mortgagor when a trespasser takes possession of the property from the mortgagee claiming the property himself.