LAWS(PVC)-1934-1-105

SANTOKHI MISSER Vs. SIRO JHA

Decided On January 04, 1934
SANTOKHI MISSER Appellant
V/S
SIRO JHA Respondents

JUDGEMENT

(1.) This was a suit for redemption of a usufructuary mortgage. The mortgagees claimed that many years ago they had entered into a contract with the mortgagors, by which on payment of an additional sum of Rs. 25, the mortgaged property was sold to them, and their names ware substituted for the names of the mortgagors in the sherista of the Darbhanga estate. The Subordinate Judge has found that the sale actually took place as describe by the mortgagees; but he considers that as the mortgagees were in possession at the time when the oral sale took place, they could not claim that transfer was made by delivery of the property, in view of the decision in Sibendrapada Banerjee V/s. Secretary of State for India in Council 34 C 207. He held, however, that from the date of the sale the former mortgagees held as purchasers adversary to their venders, and that as they had so held more than twelve years before the date of suit, the plaintiffs claim was barred by limitation.

(2.) Mr. S. N. Sahay on behalf of the plaintiff-appellants, argues that the view of the Subordinate Judge ought not to be supported, on the ground that during the pendency of a mortgage a mortgagee cannot acquire against his mortgagor any title by adverse possession which would bar a claim to redeem. He cites the decision in Bakha Singh V/s. Ram Narain Singh 80 Ind. Cas. 932 : 47 A 73 : 47 M L J 475 : 35 M L T 120 : AIR 1925 Mad, 132. in support of this view. In that case it was held that so long as the right of mortgagors to redeem a mortgage existed, it was not open to the mortgagees to set up an adverse title, and in so doing, to claim that their possession was protected by the law of limitation. In the present case the learned Subordinate Judge has found that the contract by which the mortgage came to an end, and the former mortgagee began to hold under a new title, was a valid contract actually entered into by the parties, although the purchasers could not claim the benefit of the provisions of Section 54 of the Transfer of Property Act, because since they already had possession of the property, there was no actual delivery the possession accompanying the sale. But the relationship of mortgagor and mortgagee came to an end when the contract to sell was completed, and the right to redeem then came to an end; so that it cannot be said that the mortgagees have been setting up adverse title while the right to redeem still existed. In Karnam Kandasami Pillai V/s. Chinnabha 62 Ind. Cas. (sic)03 : 44 M 253 40 M L J 103 : (1(sic)21) M W N l; 29 M L T 167: 13 L W 423., the facts were very similar to the facts of the present case. The matter was disposed of precisely in the same manner as the loamed Subordinate Judge has disposed of the present cafe; and it cannot be said that his method of disposing of it is illegal.

(3.) Indeed on the learned Subordinate Judge's finding of fact it is clear that he has done justice between the parties. At the time of the sale, the mortgagor Balakram Misser obtained an entry of the purchaser's name in the sherista of the Darbhanga raj in place of his own for the area transferred by the sale. Evidence to this effect was given by one of the defendants witnesses Kali Singh, whose evidence was expressly accepted by the learned Subordinate Judge; and it appears to be clear from the manner in which the Subordinate Judge has discussed it that he accepts this witness's statement that Balakram Misser procured this mutation of name in the sherista of the estate. The purchasers were already in possession of the property, so that nothing further was needed to place them in actual possession as raiyats beyond the mutation of names in the landlord's sherista; and I consider that this obtaining of the mutation of the names by Balakram Misser should be treated as an act of delivery of the property which would being the transfer within the provisions of Section 54 of the Transfer of Property Act. Sonai Chutia V/s. Sonaram Chutia 34 Ind. Cas. 692 : 20 C W N 195., at the time of the sale to the mortgagee in possession there was formal pointing out of boundaries and an endorsement on the back of the mortgage bend; end it was held that everything that could be done to deliver possession to give effect to the sale, had been done and all the requirements of Section 54 of the Transfer of Property Act had been satisfied. In the present case I consider that the same view should be taken of the act of the vendor in obtaining mutation of the purchaser's name in the landlord's sherista.