Parthasarathy Naicken alias Subbiah Naicker and Others vs Lakshmana Naicker and Others

Munro, J.—The suit is to recover by sale of the mortgaged property the amount remaining due under a registered simple mortgage bond

executed in favour of the first plaintiff by the paternal grandfather of defendants at Original Suits Nos. 1 and 2 in 1871, It is found that in execution

of a simple money decree obtained against the mortgagor after the execution of the mortgage bond the suit property was attached and sold in

Court auction, that delivery was obtained by the purchaser in 1873, and that thereafter the property was held by him and those claiming under him

adversely to the mortgagor, so that before the present suit was brought the mortgagor''s right to the property had become extinguished. It was

contended that the plaintiff''s mortgage right bad also become extinguished at the same time as the right of the mortgagor. The District Judge

negative the contention and the main question in this appeal, which is by defendants Nos. 1 and 3 be 5, is whether the District Judge was wrong in

so doing.

It will be observed that under his mortgage the plaintiff was not entitled to possession and that the mortgage was created before adverse

possession had begun to run against the mortgagor. A number of cases have been cited by the appellants in support of their contention and it will

be convenient first to consider these cases and see whether they really do support the appellants. In Anundo Moyee Dossee v. Dhonendro

Chunder Mookerjee (1871) 14 M.I.A 101 one Sreenath Mulliell in 1841 mortgaged certain property to Mutty Lalseal, who brought a foreclosure

suit and purchased the property with the section of the Master of the Supreme Court at Calcutta. He failed to get possession and his executors

sued the defendants for possession. It was found that prior to the mortgage the property bad been attached in execution of a decree and that the

defendants had purchased it in the sale that followed. Their Lordships of the Privy Council therefore held that the title of the defendants

independently of the Regulations of Limitations, was paramount and superior to the title of the mortgagee. They added however that even if the

attachment had been posterior to the mortgage, still the Regulations of Limitations would have been a conclusive bar, They pointed out that a

purchaser at a Court sate who has no notice of a mortgage on the property purchased thinks he is acquiring the absolute title to the property and

that he is in possession as absolute owner. They then proceeded thus:

Under these circumstances they are of opinion that if the title ""of mortgagee to enter by reason of a default having occurred before, had accrued

and if the purchaser under such a title had been in ""possession for twelve years, believing himself to be a bond fide"" owner, under a claim to the

ownership of the property and not ""being in possession in any way an mortgagor or under the mortgagor, then in accordance with the cases...they

ate of ""opinion that the suit to disturb the possession of such a purchaser ""ought to be brought within the twelve years after the commencement of

his possession."" This decision is manifestly an authority for the appellant''s contention but is rather against it. Their Lordships were dealing with a

case in which the mortgagee had apparently a right to enter into possession of the mortgaged property on the mortgagor''s default, and their

conclusion is bused not only on the purchaser''s possession for twelve years, but also on the right of entry having accrued to the mortgagee, and I

understand their Lordships to mean that time did not begin to run against the mortgagee until the right of entry had accrued. The decision is thus in

accordance with the general rule that adverse possession begins to run against the true owner when the true owner has the right to immediate

possession --see the definition of ""adverse possession"" given by Markby, J., in Bejoy Chunder Banerjee v. Kally Prosonno Mookerjee ILR

(1819) Calc. 327, Brojonath Koondoo Chow-dry v. Khelut Chunder Ghose (1871) 14 M.I.A 144 was also a case in which the mortgagee had a

right of entry on the mortgagor''s default. Default occurred, but the mortgagor was left in possession and sold part of the property mortgaged. The

purchaser took possession. Their lordships observed: ""It is impossible to hold that the ""defendant, the purchaser, was holding or supposed ho was

holding by the permission of the mortgagee, and, when both things"" concur--possession by such a holder for more than twelve years ""and the right

of entry under the mortgage deed more than ""twelve years old--it is impossible to gay that such a possession is ""not protected by the Law of

Limitations."" This decision no more supports the appellant''s contention than the decision last quoted. The remarks at page 151 of the report also

clearly apply only to mortgagees who are entitled to possession for they refer to mortgagees who allow the mortgagor to be the ostensible owner in

possession. In Ammu v. Ramakrishna Sastri ILR (1879) Mad. 220 the following passage occurs: ""But there are other cases in which the rights

and interests of the mortgagor and mortgagee are equally invaded, ""e.g... when the mortgagor has remained in possession"" and a stranger ousts

him from the land?."" The mortgage in that case was a mortgage under which the mortgagee was entitled to possession, and we are not bound to

assume that the learned Judges intended their remarks to apply to a mortgagee not entitled to possession under his mortgage. The words ""when the

mortgagor has remained in possession"" are quite consistent with a case whore the mortgagee though entitled to possession has not taken

possession. The passage cannot therefore be regarded as an authority for the appellant''s contention.

In Nallamuttu Pillai v. Betha Naickan ILR (1900) Mad. 37 the mortgagee was not entitled to possession under his mortgage.

Adverse possession had however begun to run against the mortgagor before the mortgage was granted and such possession was treated as

adverse to both mortgagor and mortgagee In the present case adverse possession had not begun to run against the mortgagor when the mortgage

was granted, so that the case cited is clearly distinguishable. In the case cited the fact that the mortgagee was not entitled be possession made no

difference, for time had begun be run against the mortgagor when the entire interest in the property vested in him, and nothing subsequently

occurred which could have the effect of interrupting the running of time, Thus both the mortgagor and the mortgagee who derived title from him

were equally barred, In Ram Lal v. Masum Ali Khan I.L,R.(1903) All. 35 also, the property mortgaged was held adversely to the mortgagor at

the date of the mortgage.

In Sheoumber Sahoo v. Bhowaneedeen Kulwar 2 N.W.P.H.C.R. 223 the mortgage was a mortgage by conditional sale which was to become

absolute in two years on certain terms The suit, was for possession under the mortgage, and was resisted by persons who did not claim under

either the mortgagor or mortgagee, on the ground that they had been in adverse possession for twelve years. In holding that the suit was barred,

the High Court observed ""where possession of the ""property alleged to have beau mortgaged has been taken by a ""party who does not claim

under the alleged mortgagor, and has been held by such third party adversely to the mortgagee, the ""mortgagee is bound to come in within twelve

years to indicate ""Ms right."" The possession in that case was evidently held to be adverse to the mortgagee, but as the facts are not set out in detail

we have to conjecture as be the circumstances which wore considered to render the possession adverse. The case is distinguishable because (she

mortgagee was entitled to possession under his mortgage. Further we do not know when the defendant''s possession began, a most important

consideration as already pointed out Prannatk Roy Chowdry v. Rookea Begum and Ors. (1859) 7 M.I.A. 323 was also a case of mortgage by

conditional sale and so distinguishable. The appellants rely on the following remarks at page 355, ""where a ""mortgage is subject by law to be

foreclosed, the title to foreclose ""is in the nature of a limit to the title to redeem. It by no ""moans follows, as a consequence that the mortgagee

foreclosing"" will be able, in a suit for possession, to make good against all occupants a title to possession."" There is nothing in this to support the

appellants'' contention. As already indicated there are oases in which a mortgagee can be successfully met by a plea of adverse possession. Ham

Koamar Sein and Ors. v. Prosunno Coomar Sein awl others (1864) W.R. 370 is also not in point, for there the mortgagee was antitled to sue for

foreclosure and possession before the adverse possession, which was pleaded as a defence to his suit, began.

Much shress has boon laid upon Karan Singh v. Bakar Ali Khan ILR (1883) All. 1. There the mortgage was created in 1862, and was a simple

mortgage, so that be far the case is on all fours with the present case. The defendant''s own possession was found to have commend in 1863, that

is, after the mortgage. As however thin possession did not extend over twelve years, the defendant sought to tack on the possession of the

Collector which began in 1861 before the mortgage, on the ground that the possession of the Collector was possession on his behalf and adverse.

Their Lordships of the Privy Cauncil observed with reference to the rule of limitation that it was not for the plaintiff, the mortgagee, to prove

possession within twelve years, but that his suit might be brought within twelve years from the time, when the possession of the defendant became

adverse to the plaintiff. They then pointed out that the defendant had not been in possession for twelve years, and that he could not tack on the

Collator''s possession from 1861 to the time when in 1863, the Collector delivered possession to him, inasmuch as since the Collector did not hold

for him, ho did not claim through the Collector. They did not enter nor was it necessary to enter upon the question whether the defendant''s

possession from 1863 standing by itself should be considered adverse to the mortgagee. It is suggested that we must infer that they considered that

possession adverse because they went into the question whether the defendant was entitled to tack the Collector''s possession. Such an inference

is not a necessary inference in the circumstances. Had the Collector''s possession which began before the mortgage been adverse to the

mortgagers, and had the defendant claimed through the Collector then, the mortgagee''s suit would have been barred as in Nallamuttu Pillai v.

Belha Naickan I.L.R (1900) Mad. 37. This supplies a reason why if was considered necessary to consider the question of tacking.

There is nothing in Nilahant Banerji v. Suresh Chandra Mullick ILR (1886) Calc. 414 which throws any light upon the present question, and the

only other decision relied on is the decision of a Bench of this Court in Second Appeal No. 1689 of 1909. That decision undoubtedly supports the

appellants'' contention it is however mainly based upon Prannatk Roy Chowdry v. Pookea Begum and Ors. (1859) 7 M.I.A. 233, Ammu v.

Ramakrishna Sastri ILR (1878) Mad. 226, Ram Koomar Sein and Ors. v. Prosunno Coomar Sein and Ors. (1864) W.R. 375, Sheoumbar

Sahoo v. Bhowaneedeen Kul-war 2 N.W.P.H.C.R. 223 and Karan an Singh v. Bakar All Khan ILR (1878) All. 1, which have been dealt with

above. The reasone which I have given for holding that these eases do not support the appellants'' contention do not, so far as I can gather from

the judgment, appear to have been present to the minds of the learned Judges who decided Second Appeal No. 1689 of 1909, It may also be

observed that the precise proposition which they rejected was ""that though the right of the mortgagor in the mortgaged property may be

extinguished by adverse possession by a person for twelve years after the execution of the mortgage yet, in no case, would the mortgagee''s

remedy against the mortgaged property be lost if his right to enforce the mortgage against the mortgagor is not barred."" Enough has been already

said in the judgment to show that such a broad I proposition cannot be successfully maintained. In Aimadar Mandal v. Makhon Lal Day ILR

(1906) Calc. 1015, the mortgage was a simple mortgage. Possession, which began after the grant of the mortgage, was held for more than 1 2

years prior to the suit by a person claiming under a purchaser of the mortgaged property in execution of a decree against the mortgagor. It was

held that limitation did not begin to run against the mortgagee until he became entitled to claim possession after he purchased the property in

execution of the decree which he obtained upon his mortgage This decision was dissented from in Second Appeal No. 1189 of 1909 above

referred to, but was followed by myself and Krishnaswami Alyar, J., in Venkataohala Asari v. Subra-mania Chetti (1909) S.A. 682 (unreported),

and I still think it is correct, It is in accordance with what I conceive to be the correct principle, vis., that the interest in Immovable property which

is affected by adverse possession is the interest and that interest only which the person who was entitled to immediate possession at the time the

adverse possession began, bad at that time. This principle can be deduced from the language of Article 144 of schedule II of the Limitation Act of

1877 itself, and the cases already cited supply instances of its application. Under Article 144, limitation begins to run from the time when the

possession of the defendant becomes adverse to the plaintiff, This shows that a claim to Immovable property will not cause time to run against the

true owner unless it in accompanied by possession; while the term ''''adverse possession"" clearly implies that the person against whom adverse

possession is exercised is a person who is entitled to demand possession at the moment the adverse possession begins. As the possession is thus

adverse only 6o the person having the right to immediate possession, it follows that only the interest which that person baa in the property when the

adverse possession begins can be affected by this adverse possession. If such a person has the entire interest when the adverse possession begins,

he cannot, by after wards transferring the whole interest, as by sale, or by transferring a part of the interest as by mortgage, prevent the operation

of proscription upon the entire interest, unless he also interrupts the possession which is adverse If, however, while still in possession he transfers a

part of big interest, the transferee will not be affected by the subsequent possession of a third party, if under his transfer he is not entitled to

possession of the property. In the two cases quoted Anundoo Moyee Dossee v. Dhonendro Chunder Mookerjee (1871) 14 M.I.A. 101 and

Brojonath Koondoo Chowdry v. Khelut Chunder Ghose (1871) 14 M.I.A.144 the mortgagees were effected by the possession of the third party,

because they were entitled to possession under their mortgages. In Nallamuttu Pillai v. Betha Naickan ILR (1900) Mad. 37 and Ram Lal v.

Masum Ali Khan ILR (1903) All. 85 the possession of the third party began before the mortgage, and the mortgagee was therefore affected by it.

Except the decision in Second Appeal No. 1689 of 1909, no decision has been brought to notice which is clearly contrary to the views above

expressed. The contention of the appellants must therefore fail.

The only other question is whether Article 147 or Article 132 of schedule II of the Limitation Act of 1877 applies, The Courts below have

rightly followed the decision of this Court in Srinivasa. Pillai v. Vasudeva Mudaliar Appeal No. 164 of 1902 (unreporited),

I would dismiss the second appeal with costs,

Benson, J.

I concur The simple mortgage in favour of the first plaintiff was granted before the purchaser in Court auction got possession--when the

purchaser got possession the mortgagee (plaintiff) was not entitled to possession, so the purchaser''s possession though adverse to the mortgagor,

was not adverse to the mortgagee, for it was not inconsistent with his rights. The decision of the lower Appellate Court is therefore right and the

second appeal is dismissed with costs.