Mohim Singh vs Chattar Singh

Ali, C. J.

(1) This is a defendant's second .appeal in a suit for possession of 8 kanals and 7 marlas of land in Khata No 19 situate in village Goda Chabilian

Tehsil Jammu.

(2) The plaintiff brought the. present suit for possession and in the alternative for redemption on the ground that the land in question had been

mortgaged by the plaintiff to the defendant on 17th Chet 2005 (B), for a sum of Rs. 200/. Since the mortgage was an unregistered one, the plaintiff

prayed for possession of the property or in the alternative for redemption of the mortgage on payment of a sum of Rs 200/. The plaintiff alleged

that he had served a notice on the defendant to redeem the land and hand over possession to him, bur in reply to this notice the defendant denied

the subsistence of the mortgage and pleaded that the mortgage was superseded by an oral sale and the mortgagee had acquired title by adverse

possession. Hence the plaintiff prayed for a decree for possession,

(3) The suit was resisted by the defendant on the ground that soon after the mortgage was executed, there was an oral sale between the parties by

which the land mortgaged to the defendant was sold to him for a sum of Rs. 550/. According to the defendant this sale took place on 1st Jeth

2007 and ever since then he was in possession of the property and even if the sale was invalid, he had acquired title by adverse possession. The

trial court decreed the suit on payment of Rs 450/ but the District Judge on appeal held that the oral sale was proved and he therefore dismissed

the suit. There was a second appeal to this court which was heard by one of us (Bhat J.) who remanded the suit for framing additional issues. The

learned Judge, however, held that the factum of the oral sale was proved beyond any doubt and he accordingly closed this part of the case. When

the case went back on remand, the trial court of the SubRegistrar Munsiff dismissed the suit on 31865, but on appeal the District Judge accepted

the appeal and decreed the plaintiff's suit, holding that the since the oral sale was invalid and hit by S. 138 of the TP Act and the defendant was a

mortgagee, he could not acquire title by adverse possession. Hence this second appeal before us.

(4) The learned counsel appearing for the appellant submitted before us that in view of the admitted findings of the District Judge that the oral sale

was invalid the defendant started prescribing from the date of the sale, namely 1st Jeth 2007 and had acquired title by prescription. The learned

counsel relied upon several authorities in AIR 1963 SG 70, AIR 1967 SC 978 and AIR 1962 Patna. It was submitted before us that even though

the sale was invalid, the character of possession of the defendant as a mortgagee was converted into that of a trespasser and ripened into title by

adverse possession after the expiry of 12 years from the date of the sale. It was pointed out that in similar circumstances the Supreme Court in

AIR 1963 SC 70 (Supra) had held that the mortgagee had acquired title by adverse possession. In this connection reliance was placed on the

following observations of the Supreme Court :

It is not disputed that when a person gets into possession of properties as mortgagee he cannot by any unilateral act or declaration of his prescribe

for a title by adverse possession against the mortgagor, because in law his possession is that of the mortgagor, But what is contended is that if the

mortgagor and mortgagee subsequently enter into a transaction under which the mortgagee is to hold the properties thereafter not as a mortgagee

but as owner that would be sufficient to start adverse possession against the mortgagor if the transaction is for any reason inoperative under the

law. This contention, in our opinion, is well founded Though there was at one time a body of judicial opinion that when a person enters into

possession as a mortgagee he cannot under any circumstances acquire a title by prescription against the owner, the law is now fairly well settled

that he can do so where there is a change in the character of his possession under an agreement with the owner, vide Karnam Kanda Sami V.

Chinnabba. AIR 1921 Mad 82.

(5) A perusal of these observations of their Lordships shows that two important propositions had been adumbrated by them : (1) That if it was not

open to a mortgagee to convert the nature of his possession as a mortgagee into one of an owner merely by a unilateral act or declaration. (2)

Where, however, the two parties entered into a transaction, though illegal, by which the mortgagee was put in possession as an owner then the

mortgagee will start prescribing from that date Presumably this decision seems to support the contention of the counsel for the appellant, but having

regard to the peculiar position of law in our State, the present case falls within the proposition No. 1 laid down by their Lordships, that is to say a

unilateral act of the mortgagee will not enable him to convert his possession from a mortgagee to that of an owner. In this case it is admitted that the

defendant was a mortgagee before the sale took place. It is further submitted that the sale was an oral one and was neither reduced into writing nor

was it registered. S 138 of the TP Act is a provision which is peculiar to our State and does not exist in the TP Act applicable to the rest of India.

The relevant part of S. 138 runs thus :

(1) No transfer of immovable property, except in a case governed by any special law to the contrary, shall be valid unless and until it is in writing

registered and (the registration thereof has been completed in accordance with subsection (3) of S. 61 of the Registration Act, 1977).

(2) No court shall entertain a suit for pre emption in respect of transfer of any such immovable property unless the transfer complies with the

provision of subS. (J).

(3) No person shall take possession of, or commence to build or build on, any land in the province of Kashmir which has been transferred or has

been contracted to be transferred to him unless and until such transfer becomes valid under the provisions of SubS. (1),

(4) No person who has obtained a transfer of immovable property referred to in subS. (1) shall apply for and obtained from any Revenue or

Settlement Officer or Court any alteration in any existing entry in any Settlement Record or paper, unless such person produces before such officer

or court a duly executed registered instrument (the registration whereof has been completed in the manner specified in subsection (1). And no such

officer or court shall alter or cause to be altered any such entry except upon the production of an instrument registered (in the aforesaid manner).''

(6) It is therefore clear that this section prohibits any transfer, unless it is in writing registered. Secondly it prohibits even the revenue or the

Settlement Officer or the Court from altering any existing entry in any Settlement record or paper in respect of such a transaction. Thus the

alteration or change I e the status of the mortgagee effected by a transfer which is in contravention of S 138 of the TP Act is completely prohibited.

This being so, the transaction of sale is completely effected and the law prohibits a person in Possession from changing or altering the nature and

character of his possession. In other words, the position is that the mortgagee is prevented by the statute to alter or change his status as a

mortgagee into any other capacity by virtue of S. 138 (4) of the Act (Supra) Thus it is quite clear that a mortgagee is not permitted to change his

status under an oral sale .and if he does so, it will be deemed to be his unilateral and not bilateral act Their Lordships of the Supreme Court have

already pointed out that the mortgagee cannot be allowed to change his status merely by a unilateral act. Since the statute in the present case steps

in order to prevent the vendor from allowing the vendee to acquire the status of a vendee or from changing his previous status, in the eye of law,

the vendor must be deemed to be incompetent to confer any right on the vendee. It, therefore, the mortgagee is prevented from altering the nature

and character of his possession as a mortgagee, then it is manifest that his possession even after the sale would be referable to a lawful title and the

previous status he possessed A mortgagee so long as he remains a mortgagee cannot acquire an absolute title by prescription. In other words, the

possession of a vendee is just like a vendee who has taken a sale deed from a minor who is in. competent to contract. Thus as the incompetency in

such case arises out of the provisions of the Contract Act, Similarly the incompetency of the vendor to sell property arises out of the statutory

prohibition contained in S 138 of the TP Act (, Supra ). The position, however, would be different if the defendant would not have been a

mortgagee at all and would have been put in possession under an oral sale. In that case he would have become a rank trespasser and would have

started prescribing from the date when he was let in possession by the owner and the consideration mentioned above would not have applied to

such a case. We are fortified in this view by a decision of the Supreme Court in AIR 1967 ""SC 978, 932 where their Lordships held that where

the sale was viodable at the instance of the respondents, the mortgagee purchaser being in a fiduciary possession, his possession would not be

adverse as against the respondents. In that case their Lordships observed as follows '

It is thus clear that though the sale dated September 10th, 1930 in favour of Kanji and Lalji was not void but viodable at the instance of

respondents 1 and 2 by reason of their earlier contract and though as between the mortgagors and Kanji and Lalji the sale was valid and binding, it

was subject to the right of specific performance which respondents 1 and 2 had acquired and Kanji and Lalji being in a fiduciary position, their

possession was not adverse as against respondents 1 and 2. Therefore their suit for redemption cannot be said to be barred even though the

statutory period had expired.

(7) The decision in AIR 1962 Patna 198 merely repeats the proposition of law adumbrated in AIR 1963 SC 70 (Supra).

(8) In AIR 1965 J&K 83 a Division Bench of this court (to which both of us were a party) has held that since a transfer to a non state subject was

prohibited by S. 139 of the TP Act, such a transfer could not be permitted even if it was in the name of Benamidar and the real owner was a

nonstate subject. In this case the following observations were made by the Division Bench :

S. 139 of the TP Act says that all Hidayats, resolutions and Allans restricting and regulating transfers of immovable property in any part of the

State of Jammu and Kashmir preserve intact the right of transfer expressly taken away or restricted by any such enactment. A whole list of

circulars and Hidayats in particular has been mentioned in subS. (2) of this very section and the commands, one of which has been referred to

above in addition to others to the same effect have also been mentioned That means acquisition or transfer of any immovable property in favour of

a person who is not a resident of this State is completely prohibited and banned under the laws of the State. The legal validity of these commands

of His Highness has been kept intact under the Constitution Act (XIV) of 1996 as well as S. 157 of the J&K Constitution.

(9) For the reasons given above we find that the cases relied upon by the learned counsel for the appellant are distinguishable and appear to be of

no assistance to him The appeal therefore fails and is dismissed but in the circumstances without any order as to costs. t