CHINNAPPA THEVAN Vs. PAZHANIAPPA PILLAI

JUDGEMENT

(1.) The defendants are the appellants. The plaintiff is the jenmi of the plaint lands. Anganna Mudali became the lessee in 1,882 under Exhibit C from the jenmi s mortgagee, Chinnasawmy Pillai. The jenmi redeemed the mortgage in 1893 (see Exhibit G executed by Chinnasawmy Pillai), the mortgagee having continued in possession even after the redemption of the jenmi title by the jenmi in 1893. The defendants set up title by adverse possession from 1893. The question, therefore, is whether persons who were in possession as tenants from year to year under a mortgagee and who continued in possession" after the mortgage was redeemed by the owner should be deemed to have been in adverse possession from the date of the redemption by the owner, or should be deemed to be tenants from year to year under the owner there afterwards instead of under the mortgagee. In Seshamma Shettati v. Chickaya Hegade 25 M. 507 : 12 M.L.J. 119, the following passages occur at page 512: In the present ca3e, on the footing that the defendants were let into possession by the mortgagee, whether as tenants from year to year or professedly as tenants with a permanent right of occupancy, the tenancy between them and the mortgagee would have continued until the redemption of the mortgage in 1894, and such possession cannot be adverse either to the mortgagee or much less to the mortgagor, and the plaintiff s cause of action would have accrued and the period of limitation commenced to run only in 1894, if such tenancy ceases by the mere fact of redemption, or subsequent thereto, when the term of notice to quit had expired, if the right view should be that a lease given by the mortgagee, as being incidental to the managements of the mortgaged property, is binding upon the mortgagor--at any rate, as a lease from year to year, until he determines the same." Though the alternative view put forward in the italicised portion is not staled definitely to be the right view, the inclination of the learned Judges seems to tend in that direction. Section 76(a) of the Transfer of Property Act also says that a mortgagee in possession must manage the property as a person of ordinary prudence would manage it if it were his own, and the granting of pattern s by an usufructuary mortgagee is not contended to be imprudent management in Malabar. In Collector, of Basti v. Sarnam Gharak 11 Ind. Cas. 817 : 8 A.L.J. 802, Piggott, J,, says at page 806: "I do not see how it can be held that the defendant in the present case became a trespasser liable to ejectment...from the date of redemption of Mr. Churcher s mortgage, unless the Court is prepared to hold that the same would be the case with any tenant of agricultural land to whom a usufructuary mortgagee had granted a lease during the period of his mortgage. In my opinion the correct view is that tenancies thus created by a mortgagee in possession are binding on the mortgagor after redemption of the mortgage, in so far that the relationship of landlord and tenant continues, and that if the mertgagor desires to bring the tenancy to a close, he must do so by a regular suit under the Tenancy Act.

(2.) In the decree passed in a redemption suit (see Section 92, Transfer of Property Act) the mortgagee is directed to deliver up to the mortgagor on redemption all documents in his possession or power relating to the mortgaged property. In the present case, it appears from Exhibit G itself that the mortgagee assured the mortgagor that all his (the mortgagee s) rights in the mortgaged property had been extinguished and that thereafter the mortgagor (owner) was to obtain rents from the tenants who had been let into the lands by the mortgagee. Thus under the terms of Exhibit G itself the right of the mortgagee as the defendants lessor became transferred to the jenmi.

(3.) The lower Courts having found that the jenmi (plaintiff s predecessor-in-title) had no notice of the defendants setting up of adverse possession within 12 years before suit, the suit is not barred by limitation, even if it is held that a tenant by setting up adverse possession to the knowledge of the landlord can prescribe for an adverse title from the date when the landlord gets such a definite notice.