Palaniswami Gounder (Died) and Others vs Chinnaswami Gounder and Others

The plaintiff, who succeeded in his suit O.S. 72 of 1969 on the file of the District Munsif, Dharopuram, but lost in the respondents'' appeal

A.S.155 of 1973 on the file of the Subordinate Judge of Erode, is the appellant in this second appeal.

The appellant brought the said suit for redemption of the mortgage, for recovery of possession and for recovery of mesne profits. The appellant,

along with one Muthuswami Gounder, executed Ex. BI registration copy of which is marked as Ex. Al dt. 27-7-1924 in favour of Kuppana

Gounder. At the time of filing of the suit, Kuppanna Gounder was no more and therefore his legal representatives were the defendants

(respondents herein). Accordingly, the appellant, as the mortgagee was in possession for more than 30 years, the mortgage got discharged by

virtue of S. 9A of Tamil Nadu Act 4 of 1938, that Muthuswami Gounder passed away, that on his demise, the interest of the said Muthuswami

Gounder devolved on the appellant and that, therefore, the appellant is entitled to redeem the mortgage and thereby recover possession and claim

mesne profits. Various defences were raised at the instance of the legal representatives of the mortgagee, who are respondents herein. As

Muthuswami Gounder''s half share was sold in a Court auction and was purchased by one Nattukottai Chettiar of Palladam and as Muthuswami

Gounder left behind Angammal, the suit is bad for non-joinder of the said Nattukottai Chettiar. The further defence is that the appellant is not

entitled to claim benefits under Tamil Nadu ''Act 4 of 1938, and is, therefore, bound to pay the amount due under the mortgage. The further

defence is that the suit is barred by limitation. It may be useful at once to point out that both the courts below rejected the defence relating to non-

joinder of parties and the, appellant''s entitlement under S. 9A of Tamil Nadu Act 4 of 1938. While the trial Court held that the suit is in time, the

first appellate Court held that the suit is barred by limitation. It is thus the first appellate Court came to dismiss the suit. Hence this second appeal.

The second appeal had a chequered career in that it came to be disposed of once on 13-4-1978, but later the said judgment came to be set

aside.

Learned counsel for the appellant submitted that the first appellate Court erred in applying Art. 65 of the Limitation Act (Act 36 of .1963)

(hereinafter referred to as the new Act) and that the appropriate Article applicable is Art. 61. It is his further contention that at the time when the

suit was filed, the Limitation Act (Act 9 of 1908) (hereinafter referred to as the old Act) was in force. Therefore S. 30 of the new Act is attracted

to the instant case, and according to S. 30 the period of limitation will be 5 years, from the date of commencement of the new Act. It may be

stated that under Act 10 of 1969, 7 years came to. be substituted in the place of 5 years. The date of the mortgage is 27-7-1924. According to S.

30 of the Act, any suit for which the period of limitation is shorter than the period of limitation prescribed by the old Act may- be instituted within a

period of six (five) years next- after the commencement of the said Act, or within the period prescribed for such suit by the old Act, whichever

period expires earlier. Under the old Act, the period for redemption is 60 years, from the date when the right to redeem accrued. Under the new

Act, the period is 30 years from the date when the right to redeem or recover possession accrued. Thus, under the new Act, a shorter period of

limitation is prescribed when compared to the corresponding provision under the old Act. If so, the suit can be instituted within a period of 5 years

next after the commencement of the said Act, or within the period prescribed for such suit by the old Act, whichever period expires earlier. In this

c4e 5 years stipulated from the date of commencement of the new Act will expire earlier than the period that was prescribed for the suit for

redemption by the old Act. Therefore, if the present suit is instituted within , 5 years from the date of commencement of the new Act, i.e., 1- 1-

1964, the suit will be certainly-be in time. The suit was presented on 11-11-1968 and thus the suit has been instituted well within time, because the

appellant had time till 1-1-1969. 1 find that the above contention advanced by the learned counsel for the appellant is well founded and has to be

accepted. But, unfortunately, for the appellant, the learned Subordinate Judge held that as the suit is really one for possession, the suit should have

been filed within .12 years from 27-7-054, as per Art. 65 of the new Act. What the learned Subordinate Judge has done is, he has added 42

years to the date of mortgage; and on that basis, he held that the suit is barred by limitation. A reference to Art. 65 will show that that Article will

have no application to a case for redemption whatever may be the character of the mortgage, either simple or usufructuary. Art. 65 is as follows :

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Description of suit Period Of limi- from which period begins to

tation run

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For possession of immovable Twelve years When the possession of the defendant

property or any interest therein becomes adverse to the plaintiff

based on title

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This is not a suit based on title. On the other hand, in a suit for redemption, there is no scope for any dispute relating to title. Thus, Art. 65 will have

no application to the instant case.

However, Mr. N. Sivamani, learned counsel for the respondents, would contend that the suit having been laid for redemption is not

maintainable. He brought to my notice two decisions, one in Prithi Nath Singh and Others Vs. Suraj Ahir and Others, and the other in Bariko Bauri

and Another Vs. Sariamoni Pandiani, . In the earlier case, the Supreme Court has made a distinction between-the eight of the mortgagor arising

under a simple mortgage and such a right arising under usufructuary mortgage. So, as far as simple mortgage is concerned, the suit -should be one

for redemption while in the case of usufructuary mortgage, the suit would be for possession and for recovery of mesne profits, if any. In the latter

case, the Orissa High Court has held that as the suit was rightly laid for recovery of possession by the mortgagor, who has granted a usufructuary

mortgage to the other party, the suit is maintainable. This point was not at all raised by the respondents in either of the Courts below. Be that as it

may, this submission cannot be entertained because factually the present suit is not only for redemption, but also for recovery of'' possession and

for recovery of mesne profits. Thus I find that this objection, has no merit at all.

Learned counsel for the respondents further submitted that both the courts below erred in holding that the respondents have not perfected title

by adverse possession. I must immediately point out that there is the concurrent findings of fact by both the courts below. As rightly pointed out by

both the courts below, even after 1954, the mortgagee has not been asserting any title. adverse to that of the appellant. To claim adverse

possession, there must be animus. Having got possession under usufructuary mortgage, thereby claiming under the appellant, it has to be presumed

that the possession of the mortgagee continued to be one under the mortgage, but not in assertion of a title hostile to the appellant. Thus I find that

both the courts below have quite rightly held that the plea of adverse possession put forth by the respondents is liable to be rejected.

In the result, the second appeal succeeds and is allowed; the judgment and decree of the first appellate court in A.S. 155 of 1973 are set aside

and those of the trial Court in O.S. 72 of 1969 are restored. In the peculiar circumstances of the case, I make no order as to costs.

Appeal allowed.