Pushpa Thevar and Others vs Venkatarama Iyengar and Another

Ismail, J.—Defendants 4 and 6 in Original Suit No. 314 of 1970 on the file of the court of the District Munsif of Manamadurai, who succeeded before the trial Court, but lost before the first appellate Court, are the Appellants herein. The Plaintiff-first Respondent instituted the suit for redemption of usufructuary mortgage. According to the Plaintiff Ranga Ayyangar and Sundararaja Ayyangar were two brothers. The suit property belonged to them. They executed exhibit A-1 othi deed dated 19th August 1909 in favour of one Palaniandi Kone, grandfather of the first Defendant for Rs. 300 prescribing a period of five years for redemption. Ranga Iyengar and Sundararaja Iyengar are deed : but during their lifetime they orally partitioned the property; the eastern half fell to the share of Sundraraja Iyengar, while the western half fell to the share of Renga Iyengar; Renga Iyengar''s only son is the Plaintiff; Sundararaja Iyengar''s only son was Thiruvengadam Iyengar; the said Thiruvengadam Iyengar and his son sold the eastern half to one Venkatachalam Iyengar under exhibit A-4 dated 6th July 1952 and the Plaintiff purchased the same under exhibit A-3 dated 30th September 1943 from the said Venkatachalam Iyengar. Thus, according to the Plaintiff he became entitled to the entirely of the property. The further case of the Plaintiff was that the said Palaniyandi Kone sub-mortgaged the property to Mookka Kone, the father of the second Defendant and that second Defendant in turn sub-mortgaged the property to the father of Defendants 3 to 7, namely, Palanisami Thevar.

The Appellants herein put forward the contention that the property belonged to them ancestrally , that it was not the subject matter of exhibit A-1 mortgage.

The trial Court found against the case of the Appellants that the property belonged to them absolutely and accepted the case of mortgage put forward by the Plaintiff, but yet it held that the sub-mortgage created by the mortgagee under exhibit A-1 in favour of the father of the second Defendant and the sub-mortgage created by the second Defendant in favour of the father of Defendants 3 to 7 not having been by registered documents were not valid and that consequently the persons in possession had prescribed title to the suit property, with the result the suit was dismissed. On appeal preferred by the Plaintiff, the learned Subordinate Judge of Sivaganga allowed the appeal and decreed the suit for redemption. It is against this judgment and decree that the present second appeal has been filed by Defendants 4 and 6 in the suit.

Mr. N.K. Ramaswami, learned Counsel for the Appellants, put forward only one argument in support of this appeal and that argument is, that the sub-mortgage executed by the original mortgagee in favour of the father of the second Defendant and the sub-mortgage executed by the second Defendant in favour of the father of Defendants 3 to 7 not being by registered documents, those sub-mortgages were not valid and that consequently the second Defendant and Defendants 3 to 7 had acquired title to the suit property by adverse possession, with the result the Plaintiff the 1st Respondent cannot redeem the mortgage. I am of the opinion that this contention is not correct. I may point out that the learned Subordinate Judge has, on the evidence available come to the conclusion that in the first place there was a sub-mortgage in favour of the father of the second Defendant and then secondly there was a sub-mortgage by the second Defendant in favour of the father of Defendants 3 to 7. As a matter of fact, the second Defendant supported the case of the Plaintiff with regard to the sub-mortgages in question. However, the argument of the leaned Counsel for the Appellants can be met by two answers. One is, once the sub-mortgages have been found to be true, even if it is held that those mortgages are not valid in law and therefore the possession of the sub-mortgagees was adverse from the date; of creation of the sub-mortgages themselves, still the original mortgage being usufructuary one and the original mortgage being entitled to remain in possession of the property till it us redeemed, the sub-mortgagees could not prescribe title to the property itself as against the mortgagor and they could only prescribe their right to remain in possession as against the original mortgagee, because they obtained possession only as mortgagees. Apart from this, there are decisions of this Court to show that a suit for redemption of usufructuary mortgage, in substance is a suit for possession and that in such a suit, once the Defendant''s title to the suit property is found against and the sub-mortgages are held to be invalid in law, those Defendants could have prescribed title only to the status of the mortgagee and they could not have prescribed title to the status of the owner and that consequently the mortgagor can redeem the mortgage.

In Sontayana Gopala Dasu v. Inapatalupula Rami ILR 44 Mad. 946,949, 950, it was stated:

Adam Umar v. Dapu Bawaji I.L.R (1909) 33 Bom. 116 is authority for the proposition if any is needed, that possession obtained through a transaction which the law prohibits and declares to be void is adverse and the learned Judges there point out that it is just such possession originating without colour of title which is contemplated by the law of limitation of President and Governors of Madgalen Hospital v. Knotts (1879) 4 App. Cas. 324 where the possession obtained under void leases was held to be adverse. In Budesab v. Hanmanta ILR (1897) 21 Bom. 509 it was held that a partial interest in land may be lost by adverse possession as well as the whole interest and that the right to such partial interest may be asserted by suit. The learned Judges refer to two Madras decisions apparently with approval namely Madhava v. Narayana (1886) I.L.R.Mad. 244 where it was held that adverse possession for 12 years of a limited, i.e. Kanom interest, in immovable property is a good plea to a suit in ejectment to the extent of that interest and Sankaran v. Periasami I.L.R (1890) Mad. 467 where it was held that possession of a limited interest in immovable property may be just as much adverse for purposes of barring a suit for the determination of that limited interest as is adverse possession of a complete interest in the property to bar a suit for the whole property. Further in Sundara Gumkkal v. Subramania Archakar (1912) 16 I.C. 960 a decision of this Court, it was held that by virtue of adverse possession a person does not acquire a higher title than he was prescribed for. There, the office of an archakar of a temple and the properties attached thereto were usufructuary mortgaged and after the expiration of the period of redemption the mortgagee continued in possession for the prescriptive period. The learned Judges held that the mortgagee acquired only the right of a usufructuary mortgage and not the right of absolute ownership.

In Appamma v. Chinnaveadu 45 M.L.J. 667 Venkatasubba Rao J., held that the suit being for redemption of a usufructuary mortgage, it is in substance a suit for possession of the property and that 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. On this basis, the learned Judge after referring to Madhava v. Narayana ILR (1886) Mad. 244 and Sankaran v. Periasami I.L.R (1890) Mad. 467 referred to already, held that the title by adverse possession which a successor-in-title of a mortgagee can claim is only to the right of the mortgagee and not to the right of absolute ownership. This is so, because adverse possession is a matter of animus.

In the present case, once the learned subordinate Judge has found that there were sub-mortgages in fact and the father of the second Defendant and the father of Defendants 3 to 7 took possession of the property only as usufructuary mortgagees. In the absence of any valid document creating an enforceable sub-mortgage, they can prescribe title by adverse possession only to the status of usufructuary mortgagee and not to the status of absolute owner. If so, in a suit for redemption of the usufructuary mortgage, being a suit for possession in substance once the Plaintiff has proved his title he is entitled to recover possession of the property from the Defendants, who had prescribed title only to the status of the usufructuary mortgagee and not to the status of absolute owner.

In view of the above considerations, the conclusion of the learned Subordinate Judge that the Appellants herein were in the position of only usufructuary mortgagees and therefore the Plaintiff was entitled to redeem the usufructuary mortgage is correct. Hence the second appeal fails and is dismissed. There will be no order as to costs. No leave.