Nadepena Appamma vs Saripalli Chinnaveadu (dead)

Spencer, J.—The Plaintiffs sued to enforce in this Suit the terms of a usufructuary Mortgage Deed praying in their Plaint for a decree for redemption and alleging that Plaintiffs 1 to 5 had mortgaged the Suit property to the deceased husband of 1st Defendant, who was the brother of Defendants 5 to 8.

The Defendants did not admit the existence of any mortgage. The Plaintiff did not set up a title to eject the Defendants otherwise.

The Mortgage Deed produced, being unregistered, could not under Section 49 of the Indian Registration Act be admitted as evidence of Plaintiff''s light to redeem, The Subordinate Judge was of opinion that it could be looked at for the collateral purpose of showing the nature of Defendant''s possession. But no question arises as to the nature of that possession until the Plaintiffs first establish that they have a right to recover possession. The purpose for which they wish to have the document admitted is not a collateral purpose, but The direct purpose of proving the basis of their title.

I do not for an instant wish to question the proposition that if one party to a Suit sets up a title based on adverse possession, his opponent may show by means of an unregistered Mortgage Deed that the nature of the possession was permissive.

There is the high authority of the Privy Council in Varada Pillai v. Jeevaratnammal, 1919 ILR 43 Mad 244: 1919 (38) MLJ 313, for holding that an unregistered document which could not be used as evidence of a transaction requiring registration, such as a gift, may yet be looked at as explaining the nature and character of a person''s possession.

But a Plaintiff, who sues for redemption on the strength of an unregistered Mortgage Deed can never succeed, because for obtaining a Decree to redeem it is necessary to prove the terms of the mortgage, and they cannot be proved by any oilier evidence than the document itself. This is the effect of Sections 17 & 49 of the Indian Registration Act read with Section 91 of the Indian Evidence Vet. If we were to allow unregistered documents to be used as evidence of title by a mere device of pleading, we should be defeating the purpose of the Act [vide Varada v. Krishnaswamy, 1882 ILR 6 Mad 117]. Even if the Defendants were to admit in then-Written Statements that the relations between themselves were those of mortgagors and mortgagees, the Plaintiffs could not on the strength of that admission be given a decree for redemption as for redemption they must prove what sum is tine : See Krishna Pillai v. Rangassvami Pillai, 1895 ILR 18 Mad. 462 5 MLJ 187; and Mutta Venkatachalapathy v. Pyinda Venkatachalapathi, 1912 (23) MLJ 652 : 1912 ILR 12 MLT 579; Seetamma v. Krishnaswami Rao, 1916 (31) MLJ 240; Kalliani Amma v. Narayana Nambiyar, 1914 (28) MLJ 266; and Somu Gurukkal v. Ranagannnal, 1871 (7) MHCR 13. In Ananda Hait v. Khudiram Hait, 1913 (19) CLJ 532, the Plaintiff proved a title paramount to the land, and the Defendant while admitting possession under a usufructuary mortgage took the objection that being a verbal mortgage it was void. The decision was that of a Single Judge. The learned Judges, who heard the Letters Patent Appeal give no reasons for their decision. In the present Suit, the Defendant deny the Plaintiff mortgage and set up an independent title and the Plaintiffs lave not applied to amend the Plaint so as to convert the Suit into one to recover possession on their title as owners. Even if they now applied to amend their Plaint so as to make it a Suit on a different cause of action, I do not think we could properly permit, this to be done (See S.A. No. 880 of 1912).

In these circumstances the Appeal in my opinion should be allowed and the Suit dismissed with costs throughout. But as my learned brother is in favour of dismissing the Appeal, we refer the question on which we differ to a Third Judge under Section 98 of the Code of Civil Procedure.

Venkatasubba Rao, J. - The Suit is brought for redemption The Plaintiffs allege that they were the owners of the property, that they executed about 15 years previous to the Suit property, that they executed about 15 years previous to the Suit a usufructuary Mortgage Deed in favour of the Defendant''s predecessor-in-title that the latter was put in possession of the property which continues to be in possession of the Defendants, that the Mortgage Deed was not registered and that the Defendants refused to receive the amount due and deliver possession of the property to the Plaintiffs. As is usual in such a Plaint, the prayer is for possession of the property, the Plaintiffs offering to pay the amount due on Hie footing of the mortgage.

The Defendants in effect claim that the property is theirs and deny the existence of the mortgage. The District Munsif dismissed the Suit holding on a preliminary issue framed that the Suit does not lie on an unregistered Mortgage Bond. He pronounced judgment on the 10th November 1917, and retying on Subbayya v. Madduletiah, 1907 (17) MLJ 469, and Yuruva Venkata Reddy v. Maddi Veeranna, 1914 (23) IC 376, overruled the contention on behalf of the Plaintiffs that the Mortgage Deed may be referred to, to explain the nature and character of the possession held by the Defendants. The Subordinate Judge reversed the decision of the District Munsif and remanded the Suit for disposal in accordance with law His Judgment is dated 26th August 1920, and as by that time the Judicial Committee of the Privy Council in Varada Pillai v. Jeevaratnammal, 1919 ILR 43 Mad. 244 : 1919 (38) MLJ 313, had decided that an unregistered Deed of Gift could be admitted in evidence for the purpose of ascertaining the character of the possession of the alleged donee, the Subordinate Judge following the decision came to the conclusion that the unregistered bond was admissible for the limited purpose stated and observed as follows:

"When once the document proves the nature of the Defendant''s possession to be that of the mortgagees they cannot prescribe for an absolute title but they can prescribe for mortgagee''s rights after the lapse of 12 years form the date of the Deed."

The Suit being for redemption of a usufructuary mortgage, it is in substance a Suit, for possession of the property. The fact that the Plaintiff while asking for possession has offered to pay the amount due on the mortgage to the Defendant, does not render it any the less a Suit for the possession of the property. What the Plaintiff has to do in the Suit is to prove his title. Having proved it he may rely upon the Mortgage Deed itself to show that the Defendants have not acquired a title by adverse possession may observe that the title of the Plaintiff to the property has not been determined, the case having been disposed of on a preliminary point The Plaintiff may adduce evidence to prove his ownership to the property. As a piece of evidence he may even rely upon an admission of his title, if any, made by the mortgagees in the unregistered Deed in question. It rs not necessary to pursue this matter further, because, when the Plaintiff proves his title, it will be for the Defendants to make out their claim to the property. If they succeed in showing that they have been holding the property asserting the title of mortgagees for over the statutory period, they will then have shown that they have acquired by adverse possession the limited interest of mortgagees in the property in question.

It has been contended on behalf of the Defendants that to take this view, will be tantamount to permitting the Plaintiffs to convert their Suit from one of redemption into one of possession. This argument is untenable. The precise point was raised and determined in Ananda Hait v. Khudiram Hait, 1913 (19) CLJ 532. The case was first decided by Harrington, and his judgment was approved in Letters patent Appeal by Sir Lawrence Jenkins, C.J. and Mookerjee, J. The following observation in the judgment of Harington, J. disposes of the argument advanced before us on this point on behalf of the Defendants: "The argument that has been addressed to us is that if the Plaintiff is given possession in this Suit, it would be substantially altering the character of the Suit I do not agree with this. It appears to me that a Suit for possession on redeeming a usufructuary mortgage is in substance a Suit for possession of the land. If the Plaintiff establishes his title and the only answer the Defendant has is that the mortgage is void in point of law, still nevertheless the Plaintiff would be entitled to get the land, because the Defendant on his own showing has no title."

The next argument that the Defendants'' learned Vakil advanced before us is that the Suit is to enforce the terms of the Mortgage Deed, which was unregistered and that as the mortgage cannot be proved, the Suit must fail. It is perfectly true that a mortgage over immovable property to secure a sum of Rs.100 or upwards cannot be created by an unregistered Deed. It follows that a mortgagee, to whom possession has not been transferred suing for sale of the mortgaged property cannot establish his right by relying upon an unregistered Mortgage Deed and his Suit will necessarily be dismissed, but, where there is a transfer of possession, other considerations will arise. The interest winch a man can acquire by adverse possession may be limited by the nature of his possession; and adverse possession of a limited interest for the statutory period is a good plea to a Suit in ejectment to the extent of that interest. In Madhava v. Narayana, 1885 ILR 9 Mad. 244, it was held that the Kanomdars, who held the land under an invalid kanom for more than 12 years acquired by adverse possession the limited interest for which they prescribed. Again in Sankaran v. Periyasami, 1890 ILR 13 Mad. 467. it was held that the payment of Poruppu did not prevent the possession of the Defendants from being adverse to the Plaintiff, as the possession of a limited interest in immoveable property may be as much adverse for the purpose of barring a Suit for the determination of that limited interest as is the adverse possession of a complete in the property, to bar a Suit for the whole property."

In Bude Sab v. Hanumantha, 1896 ILR 21 Bom 509, the two Madras cases referred to above were cited with approval, and it was held that a tenant may, after the statutory period, acquire the right of perpetual tenancy. It was pointed out that under Article 144 of Act XV of 1877 a Suit for possession of immoveable property or any interest therein barred after the lapse of 12 years from the time when the possession of the Defendant becomes adverse to the Plaintiff, and that in a Suit in ejectment it is the tenant''s interest in possession of the tenant that the Landlord seeks to recover.

I may also refer to Manavikraman v. Ammu, 1908 ILR 24 Mad 471 (FB), which I think, has a very material bearing on the present case. In 1864, A. mortgaged certain lands to B for Rs.750. In 1881, B professing to act as she absolute owner, mortgaged the same lands to C for Rs.5,000 and C enjoyed possession of the lands for a period exceeding 12 years from the date of. It is mortgage then instituted a Suit for redemption. It was held that A was bound to redeem C''s mortgage before lie could recover his possession of the property on the ground that C''s mortgage which but for the Law of Limitation, would have been invalid as against A, had become good by C''s possession for 12 years.

From these authorities, it is clear that the Defendant, in the present case, can acquire the title of mortgagee by adverse possession for the statutory period. The Deed of Mortgage being invalid, it confers upon him no right and it cannot be relied upon as the source of the mortgagee''s title. On the contrary, his right is based solely upon the fact that he has been in adverse possession of the limited interest for the statutory period. Under the decision of the Privy Council in Varada Pillai v. Jeevaratnamnul, 1919 ILR 43 Mad. 244 1919 (38) MLJ 313, the Mortgage Deed may be referred to for ascertaining the character of his possession. It may be referred to for determining the quantum of interest for which the Defendants prescribed claiming as mortgagees. When it is said that, a mortgagee''s interest may be prescribed for, the statement implies that the mortgagee''s interest is definite and precise. If the question is, has a person prescribed for a mortgagee''s interest in respect of Rs. 100 or Rs. 10,000/-, the document may be looked at for ascertaining the quantum of interest which the adverse possessor has been claiming or has prescribed for.

This case is the converse of Varada Pillai v. Jeevaratnammal, 1919 ILR 43 Mad. 244 1919 (38) MLJ 313. In the latter the Defendant who claimed title by adverse possession sought to rely upon the unregistered documents referred to in that case for proving the character and nature of his possession. In this case it is the Plaintiff that desires to prove by referring to the unregistered Deed, that the Defendant''s possession has not been adverse. Again in the Privy Council case the Defendant wanted to make out his adverse possession of, and title to, the property by relying upon the unregistered documents. In the present case, the Plaintiff seeks to disprove the allegation of adverse possession on the part of the Defendant by relying upon the Deed, which has not been registered. In principle the two cases are identical.

As regards the Defendant''s right to be paid the amount of the mortgage no difficulty does however arise in the present case as the Plaintiff has admitted that an amount is due to the Defendant on the footing of the mortgage and offers to pay it.

I am, therefore, of the opinion that the judgment of the Subordinate Judge is correct and that the order of remand must stand.

This Appeal against order coming on for final hearing on Friday the August 1923 in pursuance of the above order of reference to a third Judge (Ramesam, J.)

Ramesam, J. - The facts are stated by my learned brothers. It is sufficient to add that Defendants 1 to 4 represent the original mortgagee, who is dead and defendants 5 to 8 are their relations and friends who got into possession of the Suit property within 12 years prior to Suit.

It is tine that the unregistered Deed of Mortgage mentioned in the Plaint is inadmissible in evidence to prove the mortgage. It is also true that a mortgage of immoveable property to secure a sum of Rs.100 or upwards cannot be created otherwise than by a registered Deed. There is, therefore, no mortgage of 1902 to redeem.

But it does not follow that there was not, at the date of Plaint, the relation of mortgagor and mortgagee between the Plaintiff and Defendants 1 to 4. It is too narrow reading of the Plaint which is a bare narration of the facts, to construe it as seeking to redeem only a mortgage of 1902 and no other. The decision in Krishna Pillai v. Rangaswami Pillai, 1895 ILR 18 M. 162 : 5 MLJ 187, does not apply. If the Defendants who remained in possession for 15 years prescribed for and acquired the interest of a mortgagee by adverse possession, the relation between the Plaintiff and the Defendants is that of a mortgagor and mortgagee. The limited interest of a mortgagee may be acquired by adverse possession: Madhava v. Narayana, 1885 ILR 9 Mad. 244. To prove the extent of interest acquired by the Defendants by adverse possession, the terms of the mortgage asserted by them have to be and may be proved. Such proof cannot be regarded as an attempt to prove the mortgage of 1902 or to adduce secondary evidence of the terms of the unregistered Deed of Mortgage; for the asserted mortgage need not, necessarily be though very often it will be identical with the mortgage attempted to be created by means of the unregistered Deed of Mortgage.

The case has not been tried One cannot now know what the evidence the Plaintiffs are going to adduce to prove the mortgage acquired by the Defendants by adverse possession. The unregistered Deed of Mortgage (which ought to be in the Defendants'' possession), if forthcoming, can be admitted in evidence to show the character of the Defendants possession. Varada Pillai v. Jeevaratnammal, 1895 ILR 43 Mad. 244 : 5 MLJ 187. It cannot be assumed at this stage that no other evidence will be forthcoming.

Even if the Defendants acquired no mortgage or other limited interest by adverse possession, the Plaintiffs can succeed if they are able to prove their title. It cannot be said that the character of the Suit is changed. In the first place, even as the Suit is framed, it is a Suit for possession based on title, as against Defendants 5 to 8 and the Suit is not a Suit for mere redemption. But, apart from this, I agree with the decision in Ananda Hait v. Khudiram Hait, 19 CLJ 532, where it was held that a Suit to redeem a usufructuary mortgage is substantially a Suit for possession [See also Sesha Naidu v. Periyasami Odayar, 1921 ILR 44 Mad. 952, 957-8].

I agree with Venkatasubba Rao, J. that the Appeal must be dismissed. Costs of the High Court to abide the result.