Amina Bi and Others vs Khamurunnissa

The defendants are the appellants. The above second appeal arises out of O.S. 347 of 1965 filed for declaring the plaintiff''s title to the suit

property and for possession. The above suit was tried by the trial court along with O.S. 612 of 1965 filed by the first defendant in O.S. 347 of

1965 for redemption of a simple mortgage executed by the plaintiff to secure a loan of Rs. 1000 on the security of the house and ground covered

by O.S. 347 of 1965. The two suits were heard together. I shall now take up the allegations in O.S. 347 of 1965 out of which the above second

appeal has arisen. The plaintiff claims title under a sale deed dated 3-4-1964 executed by one Fatima Bi in her favour and the allegation in the

plaint is that the first defendant was occupying the B schedule property which is a portion of A schedule property as a tenant under her vendor

(Fatima Bi) from 1961 on a monthly rent of Rs. 10, that the said first defendant failed to pay the rent after her purchase and further denied her title

and set up title in herself to the entire A schedule property that she was called upon to quit by notice dated 23-9-1964 (Ex. A-39), that thereupon

the plaintiff sent a further notice dated 25-3-1965 terminating the tenancy of the first defendant with the end of April, 1965 and that the said notice

was returned, refused and the present suit was filed for declaration of title and recovery of possession of the B schedule property. She did not seek

any relief in respect of the other portions of the A schedule property as the tenant in occupation of the said portion had attorned to her after her

purchase. Originally A schedule property belonged to one Jinath Bi and others and on 14-7-1897 (Ex. A-4) the said owners executed a

possessory mortgage in favour of Mohammed Jabbar Sahib and Jabbar Sahib was in possession from 1897 onwards, till be made a gift of it to his

wife Fatima Bi in lieu of her dower debt in 1928 and Fatima Bi entered into possession of the said property and continued in possession of the said

property and continued in possession till she sold the same to the plaintiff of 3-4-1964 (Ex. A-1). The further case of the plaintiff is that the entire

property was held by one Abdul Rahim as a tenant under Fatima Bi from January, 1954 till his death in 1961 and that the first defendant is the

sister of the said Abdul Rahim and was living with her brother during the tenancy period and after the death of Abdul Rahim the first defendant is

said to have held the B schedule property on lease from month to month under Fatima Bi on a monthly rent of Rs. 10 and defendants 2 and 3 are

the grand-daughter and grand-daughter''s husband of the first defendant who were impleaded for effective adjudication of the matters in dispute.

The present suit is filed for the reliefs mentioned above.

The defence to the suit is that the property did not belong to Jabbar Sahib or Fatima Bi, that Abdul Rahim was not the tenant of the property

and that the first defendant was not living with Abdul Rahim nor did she become the tenant of the B schedule property under Fatima Bi. On the

other hand, their case is that A schedule property belonged to one Hussainia mean, the father in-law of the first defendant, that the first defendant''s

husband got the property on his father''s death and that on the death of her husband on 29-10-1940, the first defendant entered into possession of

the property and has continued in possession throughout, that Habibur Rahman was not a sub-tenant under Abdul Rahim and that he was colluding

with the plaintiff and that he could not validly attorn to the plaintiff and the attornment in fact did not take place.

The trial Court held that Mohamed Jaffar Sahib had title to the property as mortgagee and the property belonged to him for all purposes as

against the third parties. The trial court further held that the gift by Mohammed Jaffar to Fatima Bi in 1928 in lieu of her dower debt is true and as

the defendants filed to prove their title to the A schedule property, the trial Court did not record a finding on issue No. 3 viz, whether Fathima Bi

had completed title to plaint A schedule property by prescription. The next finding of the learned judge was that the sale by Fatima Bi to the

plaintiff is true and that the plaintiff has title to the suit property including the B schedule property. The lease of the B schedule property by Fathima

Bi to the first defendant was held not to be true and the first defendant was never a tenant under Fathima Bi. In the result, the suit was decreed as

prayed for declaring her right to hold and possess B schedule property by virtue of the rights derived from the usufructuary mortgage deed dated

14-7-1897 and the agreement of sale dated 8-4-1908 in favour of Mohammed Jaffar Saheb and also directed the defendants to put the plaintiff in

possession of the said B schedule property forthwith.

We are not concerned with the other suit which ended in a preliminary decree being passed in favour of the plaintiff.

The defendants filed A.S. No. 207 of 1969 to the court of the subordinate Judge, Chingleput. The learned Judge confirmed the decree of the

trial court and in doing so held that the numerous documents filed established the title of Fathima Bi as well as possession. In dealing with the first

defendant''s claim to the property as her own, the appellate Judge held that there was no question of acquisition of title by adverse possession. To

acquire a title by adverse possession, the first defendant must have been in possession of the property to the knowledge of the true owner and in

the absence of the true owner it cannot be said that the first defendant was adversely in possession of the suit property and acquired title thereto.

The defendants have filed the above second appeal.

The partition deed Ex. A-10 dated 15-2-1883 whereunder the A schedule property is shown as jointly belonging to the share of Jainath Bi and

her minor sons Nurudeen Davood and Ahmed under patta No. 173, in Samthangadu village. On 14-7-1897 the usufructuary mortgage (Ex. A-4)

was executed in favour of Mohammed Jaffar Sahib by Jeenath Bi and her three sons referred to above to secure a loan of Rs. 750 and the

mortgagee was to hold and enjoy the land till the principal sum of Rs. 750 was repaid. On 8-4-1908, an agreement (Ex. A-5) was executed

between Jeenath Bi and her son to the mortgagee to sell the property to him for Rs. 1500 out of which Rs. 750 was to discharge Ex. A-4

mortgage of which Rs. 750 which was stated to have been received and the mortgage to discharge of Rs. 500 paid on the date of the agreement

and Rs. 250 to be received at the time of the sale. But it appears that no sale deed was executed and the position is that Mohammad Jaffar Saheb

and possessory title as usufructuary mortgagee under which he had to pay Rs. 250 to get an absolute sale.

The learned counsel for the appellants, however, contends that the oral gift as stated in Ex. A-2 is inadmissible in evidence. Section 129 of the

Transfer of Property Act saves Mohammedan gifts from the application of the provisions of Chapter VII of the Transfer of Property Act. The

result is that the oral gift made by Mohammed Jaffar in favour of his wife Fathima Bi in lieu of her dower debt is valid.

The next contention of the learned counsel is that the rent deeds Exs. A-6 to A-9 executed by the tenants in favour of Fathima Bi are

inadmissible in evidence for want of registration. Even so the said documents are admissible for the purpose of showing the nature of possession

held by persons under Fathima Bi. Those documents are admissible to show that Fathima Bi is the landlord and the tenants, who executed the rent

deeds, are the tenants holding under her. The appellate Court found that Exs. P-6 to P-9 are true and valid documents. I am therefore of opinion

that Exs. A-6 to A-9 may be perused to show the nature of possession. The learned counsel next attacked the truth and validity of Ex. A-38,

which is a letter by Amina Bi to Fathima Bi. The appellate Court has dealt with this letter and found that Amina Bi affixed her thumb impression to

Ex. A-38 and attorned to the landlord. The position now is that the plaintiff has purchased the interests of Fathima Bi, Viz., the mortgagee''s

interests under the possessory mortgage executed by the owner in favour of Fathima Bi''s husband. The appellate Court has dealt with the claim of

the defendant, who put forward a title to the suit property. D.W. 2 claimed to have been a tenant of a portion of the premises under Fathima Bi

(first defendant) from 2-3-1953 to 28-6-1955. But the appellate court rejected the evidence of D.W. 2 and did not accept the defence version.

The first defendant had no title and it is not shown that her husband had any title to the suit property. The first defendant claims title to the property

as her own and not through adverse possession and therefore the question of acquisition of title by adverse possession of the first defendant does

not arise. The learned Judge rightly rejected the defendants'' case regarding possession.

The plaintiff has also not established title to the property. But what she established is that she has acquired the rights of the usufructuary

mortgagee under the mortgage of 1897 even if the time for redemption had expired and her continuance after the period can only be as a

trespasser. The continuance in possession of a mortgagee after the period of redemption cannot necessarily be adverse to that of the owner. The

question is always a question of animus or the intention of the parties concerned. In Gobind Ram and Others Vs. Musammat Ram Koer and

Others, , it is stated that mere continuance in possession of the mortgagee after the mortgage money is paid out of the usufruct or by the mortgagor,

does not make such possession of the mortgagee, adverse to the mortgagor. The only declaration that the plaintiff will be entitled to in this suit will

be a declaration of plaintiff''s title and possession of the suit property subject to the rights of the rightful owner. In Ananthan Potti v. Krishna Pillai,

AIR 1957 Trav Co. 145, the circumstances under which the possession of a mortgagee after full satisfaction of the debt would be adverse to the

mortgagor has been considered. Their Lordships held that the question whether the possession of the mortgagee after the mortgage debt had been

satisfied is adverse to the mortgagor or not, is always a question of animus or intention of the parties concerned and that the whole of the

circumstances has to be considered only to find out that whether the mortgagee in the case continued in possession as mortgagees or as owners in

respect of the property. It is unnecessary to pursue this matter, as the mortgagors are not in the picture. Therefore, the rights inter se between the

mortgagor and the mortgagee need not be considered here and in this litigation the plaintiff''s declaration of title and possession can be given

subject to the rights of the mortgagor to question the same in appropriate proceedings.

The second appeal fails and is dismissed. There will be no order as to costs. No leave.

Appeal dismissed.