GOVINDA MENON Vs. PATHAIKKARA MANAKKAL PRAMATHAN KUPPAN NUMBURIPAD

JUDGEMENT

(1.) WE agree with the reasoning and the conclusion of the learned District Judge. The plaintiff executed to the 2nd defendant as the Karnavan of his tarwad Ex. A, the deed of mortgage now sued on. The suit is for redemption. The plea is that as the defendants were not let into possession by the plaintiff it is open to them to plead that the plaintiff has no title to sue. Dr. Pandalai contended before us that the view taken by the Full Bench in Venkata Chetty v. Ayyanna Gounden (1917) I.LR. 40 M. 561 F B is not applicable to mortgages,WE must now take it as settled that a kanom is an anomalous mortgage, although, as pointed out in the earlier decisions, there is in a kanom a combination of a mortgage and of a lease. Assuming for the sake of argument that Section 116 of the Evidence Act is not in terms applicable to kanoms, we think the principles enunciated in Venkata Chetty v. Ayyanna Gounden (1917) I.LR. 40 M. 561 F B govern this case. The basis of the law of estoppel is not that possession has been given by one party to the other, but that both parties have entered into a specific relationship on the understanding that the rights incident to that relationship do subsist. In the case of tenants, this court held that not only letting into possession but also the relationship acknowledged by the tenant estops him from disputing his landlord s title. In the same way, the relationship acknowleged by the mortgagee estops him from denying his mortgagor s title. There may be an additional fetter on him, if he was also inducted into possession. It is true that the cases Dr. Pandalai has placed before us do not hold that in cases where the initial possession was not taken from the mortgagor, the mortgagee will be estopped. But we fail to see why the non-letting into possession directly by the mortgagor should act to his prejudice if his title is otherwise acknowledged. Possession is only one of the indices of ownership : but not the sole one. In one case, at least Hillaya Subbayya v. Narayanappa Thimayya (1912) I.L.R. 36 B 185 the proposition is stated broadly enough to cover cases where no possession was given to the mortgagee : WE follow this statement of the law and hold that the defendants are estopped from questioning the plaintiff s title.

(2.) THE District Judge is right and we dismiss the second appeal with costs. Time for redemption is extended by three months from this date.