VYAPURI Vs. SONAMMA BOI AMMANI

JUDGEMENT

(1.) I should have been prepared to adopt the judgment of Munro, J., in Parthasarathy Naicker v. Lakskmana Naieker (1912) I.L.R. 35 Mad. 231 which was followed in Allahabad in Nandan Singh v. Jumman (1912) I.L.R. 34 All. 640 and approved by the Full Bench of that Court in Raj Nath v. Narain Dass (1914) I.L.R. 36 All. 567 (F.B.) and was itself in accordance with the Calcutta decision in Aimadarmandal v. Makhan Lal Dey (1906) I.L.R. 33 Calc. 1015 if it were not that this last decision has been questioned in Nand Kumar Dobey v. Ajodhya Sahu (1911) 14 C.L.J. 292 at p. 298 and not followed in Bireshwar Samanta v. Priya Sakhi Debi (1915) 28 I.C. 917 where the opposite view taken by Abdur Rahim and Ayling, JJ., in an earlier case in this Court--Ramasami Chetti v. Poona Padayachi (1913) I.L.R. 36 Mad. 97--was accepted as being in accordance with the decisions of the Privy Council in Vrannath Roy Chowdry v. Rookea Begum (1859) 7 M.I.A. 323 at p. 331 and Karan Singh v. Bakar Ali Khan (1883) I.L.R. 5 All. 1 (P.C.) : S.C. 9 I.A. 99. Before dealing with these decisions I may say we have not been referred to any English authority for the position that a mortgagee whose right to possession has not accrued may be debarred from suing by possession adverse to his mortgagor commencing after the date of the mortgage. Under the Statute of 21 Jac. I.; c. 16, what was barred was the right of entry or right of taking possession, and time did not begin to run until that right accrued, and then only when the possession of the occupier was adverse. So too under Sections 2 and 3 of the English Real Property Limitations Act, 1833, in suits by persons entitled to possession under an instrument, time only begins to run from the date whan the right to possession accrues. It is well settled that these are the sections applicable to a mortgagee Doe d. Boylanoe v. Lightfoot (1841) 8 M. & W. 553 : S.C. 151 E.R. 1158 though there are other provisions giving a fresh starting point from the date of part-payment. Under an ordinary English mortgage the mortgagee was entitled to possession at any time, and could bring ejectment against the mortgagor who only held at his pleasure--Ketch v. Hall (1779) 1 Dougl. 21 S.C. 1 Sm. L.C. 511--but the possession so taken by him would be the onerous possession of a mortgagee accountable for the profits to the mortgagor; and it was held that on foreclosure a fresh right of action arises for possession as owner: Pugh v. Heath (1882) 7 A.C. 235. Under the English statutes it seems to me to be immaterial whether possession commencing after the date of the mortgage was or was not adverse to the mortgagor, and the recent decision In In re Nisbet and Potts Contract (1906) L.R. 1 Ch. 386 is in accordance with this view.

(2.) In Bengal and Madras, outside the Presidency towns where the Act of James I was received, time under the Regulations ran from the accrual of the plaintiff s cause of action, and this in the case of immoveable property was held to accrue when the possession of the occupier became adverse.

(3.) In Prannath Roy Chowdry v. Rookea Begum (1859) 7 M.I.A. 323 at p. 331 which was governed by the Bengal Regulations, the main contention raised by Mr. Roundell Palmer for the appellant was that a suit for foreclosure instituted by his clients more than twelve years after the mortgage debt had become payable was not barred under the Bengal Limitation Regulations, because the disputes and litigation going on between the heirs of the mortgagor and third parties claiming as purchasers were a good cause for not suing earlier. In addition, however, to this contention, which was upheld by their Lordships and disposed of the suit, he argued further that there was no rule of law which creates an absolute possessory title in a twelve years undisturbed possession even if that had been such. On the other side it was not contended that the respondentia who claimed under an alleged purchase from the mortgagor had been holding adversely to the mortgagee. The contention was that they had purchased subject to the mortgage and were entitled to redeem. Their Lordships judgment must be read with reference to these contentions. The case was one of a mortgage by conditional sale, and their Lordships observed that if the mortgage deed had been allowed to take effect according to its tenor possession might be considered to have become adverse to the mortgagee- purchaser from the completion of the title, or as I understand it, from the time when the mortgagee was to become owner under the terms of the deed and entitled to possession as such. As however under the Bengal Regulations the conditional sale was to be treated as a mortgage, they held that the possession of persons in the position of the respondents whose case was that they had acquired and held the property subject to the mortgage was not, any more than in England, inconsistent with the mortgagee s title, or their possession adverse to the mortgagee. As regards the defences with which a mortgagee suing for possession after foreclosure might-be met by occupants other than the mortgagor, their Lordships say that he might be met by proof of a prior or a superior title, or by proof of want of title in himself, or that he has not perfected his title to possession." By these last words I understand that the mortgagee must show that his own title to possession has accrued. Their Lordships certainly did not say that a mortgagee suing in the circumstances stated might be met by proof of possession adverse to his mortgagor commencing subsequently to the mortgage at a time when he himself had no right, to possession against the mortgagor or any one else.