RAMCHANDRA VENKAJI NAIK Vs. KALLO DEVJI DESHPANDE

JUDGEMENT

(1.) Two points have been argued in this appeal; first, that the mortgagee, who is sued for redemption under the Dekkhan Agriculturists Relief Act in respect of certain watan property, must be taken to have been in adverse possession, and to have acquired an absolute title by reason of the provisions of Section 5 of the Watan Act, which render the mortgage invalid after the death of the original watandar-mortgagor. But the Indian Limitation Act cannot be invoked to enforce any such conclusion, for the presumption is that unless there is some definite indication on the part of the person in possession that he will, from a certain date, claim as absolute owner and not as mortgagee, he can only acquire by adverse possession the limited interest to which he was entitled at the mortgagor s death, namely, that of a mortgagee. He, therefore, remains a mortgagee for the purpose of the redemption suit, even assuming that he has been in possession for more than 12 years since the death of the original mortgagor.

(2.) The second point is that the learned Judge has decreed mesne profits, that is, the net receipts, from the property as from the date of suit against the mortgagee. It is to be observed in the first place that no such claim has, so far as the industry of the Pleaders has been able to discover, ever been allowed since the passing of the Dekkhan Agriculturists Relief Act in 1879. If allowed, it must be based on the assumption that the mortgagee has, from the date of suit, been in possession of property which he is not entitled to retain in his possession under the contract between the parties, for the Dekkhan Agriculturists Relief Act itself makes no provision with reference to profits after the date of the institution of the suit. But the plaintiff, by filing a suit under the Dekkhan Agriculturists Relief Act, and claiming an account on the footing of Section 13, which gives the go-by to the provisions of the mortgage contract, renders those provisions irrelevant and it is, therefore, impossible for the Court to discover whether the mortgagee would, if the contractual relations were preserved, be entitled to remain in possession between the date of suit and the date of the decree. Speaking generally, the enforcement of the provisions of Section 13 places the mortgagor in a much more favourable position than he would be in if he relied upon the terms of the contract and no presumption arises that the mortgagee is, apart from the provisions of the Dekkhan Agriculturists Relief Act, not entitled to retain possession after the date of the institution of the suit. It appears to us that this is a case in which we ought to apply the principle laid down by Sir Charles Sargent in Janoji v. Janoji 7 B. 185 at p. 187 in which he says: "Remembering that the Act encroaches on existing legal rights, it should, on general principle, not be construed to extend beyond the particular object which the Legislature had in view" in passing the Act, and which in the preamble is said in express terms to be to relieve the agriculturist in the Dekkhan from indebtedness. That object is effected when the agriculturist is enabled to discharge his debt and recover his land on far easier terms than those which he has contracted for...."

(3.) We, therefore, vary the decree of the lower Appellate Court by deleting the provisions with regard to the payment of mesne profits. The appellant has partly succeeded and partly failed; therefore, each party must bear his own costs in this Court and in the lower Appellate Court.