Sundaram Aiyar vs Thiyagaraja Pillai

This is an appeal against the judgment of the Acting Subordinate Judge of Tanjore who reversed the decision of the District Munsif of Tiruvadi

on the question of limitation and remanded the suit for disposal on the other issues raised in the case.

The main facts necessary for determining the issue of limitation may be briefly stated. The kudivaram rights in the properties to which this suit

relates belonged to one Sama Rao and were sold for arrears of rent due by him to the Palace Estate and were purchased by one Maria Pillai on

1st March, 1895, to whom the Palace Estate granted a patta. Maria Pillai, on 1st January, 1897, hypothecated the properties to one Nethar Bibi

who filed O.S. No. 400 of 1902 and obtained a decree. She assigned the decree to one Thiyagaraja Pillai and he in execution of the decree

purchased the properties on 5th September, 1906, and obtained symbolical possession of them on 27th August, 1907. Thiyagaraja Pillai is the

plaintiff in the present suit which was filed on 4th September, 1918.

The Palace Estate, the defendant, has set up the plea that the suit is barred by limitation, One Kalki Ramachandra Rao obtained symbolical

possession of the properties in execution of the decree in O.S. No. 15 of 1894 of the Tanjore Sub-Court and the Palace Estate purchased the

properties in. 1905 for arrears of rent payable to it. by the said Ramachandra Rao.

The Subordinate Judge says in his judgment: "" It is not stated or proved by the defendant that somebody else was in possession on the date of

the mortgage or that Maria Pillai had no title to mortgage on that date. "" Maria Pillai was, therefore, not only the owner of the properties on the

date of the mortgage but no one other than himself was in possession of the properties on that date. The Subordinate Judge also finds that the title

of the Palace Estate arose only on 22nd May, 1905, and it is to be presumed that the Palace Estate did not claim to have been in possession of the

properties previous to 22nd May, 1905. The defendant was thus in adverse possession of the estate from 22nd May, 1905 to 4th September,

1918, the date of the suit. The question to be determined is, whether the possession of the Palace Estate for over 12 years before the suit which

admittedly is adverse to the mortgagor is also adverse to the mortgagee or Thiyagaraja Pillai who got the assignment of the decree from the

mortgagee and became the purchaser of the properties. The Subordinate Judge relying on Vyapuri v. Sonamma Bat Ammani 29 M.L.J. 645 (F B)

held that any adverse possession against the mortgagor would not operate to the prejudice of the mortgagee and that the rights of the plaintiff

(purchaser) would not be affected. We are of opinion that the Subordinate Judge''s decision is correct. Vyapuri v. Sonamma Bai Ammani 29

M.L.J. 645 (F B) is an authority for the proposition that the mortgage being simple, a trespasser''s adverse possession which commences after the

date of the hypothecation is not a bar to the mortgagee''s right to recover the land. After a review of several cases bearing upon the subject the

learned Judges came to the conclusion that the trespasser''s possession which is adverse to the mortgagor cannot affect the rights of the simple

mortgagee and that it would be unreasonable to hold that the mortgagee''s rights are extinguished by the extinction of the mortgagor''s title by 12

years'' adverse possession before the mortgagee is in a position to protect his rights. The reason for holding that the simple mortgagee is not

affected is that he is not entitled to the possession of the property. That this is the principle underlying the decision appears from each one of the

judgments delivered in the case. In view of the fact that the matter is concluded by the authority of the Full Bench ruling above referred to, we think

it unnecessary to discuss the other cases that have been cited before us. It is sufficient to say that this question was considered by the Calcutta High

Court in Priya Sakhi Debi v. Maubodh Bibi ILR (1915) Cal. 425 where Sanderson, C.J. and Mookerjee, J. adopt the view enunciated in Vyapuri

v. Sonamma Bai Ammani 29 M.L.J. 645. They had to deal with the question whether adverse possession against the mortgagor would affect the

mortgagee. At page 433, Sanderson, C.J. says: "" In my judgment ''adverse possession'' implies that the person against whom adverse possession is

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

The mortgage in this case being a simple mortgage, the mortgagee was not entitled to demand possession of the property at the time the

defendant No. 3 went into possession in 1892 and indeed the plaintiff has never yet become so entitled. Consequently, in my judgment, Article

144, even if applicable, will not avail the defendant No. 3 to dispute the plaintiff''s claim.

Mr. K.V. Krishnaswami Aiyar on behalf of the appellant contended before us that the adverse possession of the trespasser would not affect the

mortgagee only so long as he was a mere mortgagee but that he would be affected the moment he obtained a decree for sale. We are unable to

follow this argument because the protection afforded to the mortgagee was owing to the fact that he was not entitled to the possession of the

property and the mortgagee''s position in this respect is not improved by his obtaining a decree for sale. The learned vakil referred us to various

cases for the purpose of establishing that, when a mortgagee obtains a decree, his rights under the decree would supersede his rights under the

mortgage We do not think that these cases have any bearing upon the question at issue, and following Vyapuri v. Sonamma Bai Ammani 29

M.L.J. 645 we hold that the rights of the plaintiff (purchaser) were not barred by the adverse possession of the Palace Estate which commenced

subsequent to the mortgage in favour of Nethar Bibi. In this view the claim of the plaintiff has not become barred under Article 144 of the

Limitation Act.

It has next been argued by the learned Vakil for the appellant that the Article applicable to a suit of this nature is Article 137 of the limitation

Act. He contends that this being a suit by a purchaser at a sale in execution of a decree, the purchaser is bound to come to Court within 12 years

from the date when the judgment-debtor is first entitled to possession; and that Article 137 in terms applies, and therefore recourse should not be

had to Article 144. What is the result of holding that Article 137 applies? Although as has been pointed out above, the rights of the mortgagee are

not extinguished by any adverse possession against his mortgagor, time against the purchaser under Article 137 is to be computed from the date

the judgment-debtor is first entitled to possession; that is, a purchaser will be precisely under the same disability as the mortgagor. The right

conceded to the mortgagee turns out to be illusory and the trespasser who could not set up his adverse possession against the mortgagee becomes

enabled to set it up against the purchaser at the execution sale. We may take two illustrations to elucidate this point. Let us suppose that a

mortgage is executed in 1880 and. the suit upon the mortgage is brought in 1890 which is in time under Article 132. We shall assume that the suit is

finally decided in 1903. The property is brought to sale and purchased in 1904. In the meantime, a trespasser takes possession of the property in

1891 and completes 12 years'' adverse possession by 1903. The purchaser sued in 1904. If we accept the contention of the learned vakil for the

appellant, the mortgagee being first entitled to possession in 1891, the purchaser''s suit filed in 1904 is liable to be dismissed under Article 137. In

the case above stated, if the mortgagee himself becomes the purchaser, the purchase confers on him. no rights whatsoever, whereas it is conceded

that as mortgagee he had the right to proceed against the property.

The second illustration is this. The mortgage is in 1880. The adveise possession of the trespasser commences in 1881. The mortgagee files a suit

upon the mortgage in 1892 and his suit is in time under Article 132. He obtains a decree in 1894, himself purchases the property and files a suit

immediately for possession against the trespasser. If the view pressed upon us regarding the effect to be given to Article 137 is correct, the suit

would be barred as the same was filed more than 12 years since the judgment-debtor was first entitled to possession, that is 1881.

It will be noticed that Article 136 refers to a suit by a purchaser at a private sale and the time is to be reckoned from the date when the vendor

is first entitled to possession. The sale under Article 136 is a sale of the interest possessed by the vendor. Similarly under the Article 137, the sale

contemplated must be taken to be the sale of the interest possessed by the judgment-debtor referred to in that Article. Does the purchaser at a sale

held in execution of a mortgage decree obtain merely the interest of the judgment-debtor? The answer is obviously ""No."" The interest that the

purchaser acquires is certainly more than merely the interest of the judgment-debtor though it is not necessary (or us to define the exact nature of

the interest acquired by him. We would, therefore, hold that Article 137 does not apply to purchasers at sales held in execution of mortgage-

decrees. We consider that this is the only reasonable construction of Article 137.

We may once again advert to Vyapuri v. Sonamma Bai Ammani 29 M.L.J. 645 . The facts of that case, as appear from the report are these :

One Solomon Thenkondan hypothecated certain lands to one Jatho Rao Sahib on 28th August, 1878. The defendant''s adverse possession began

in 1890. In 1900 the suit was brought on the hypothecation bond by the mortgagee, and a decree for sale was obtained by him on 27th

November, 1900. In execution of the said decree the hypothecated lands were sold to the decree-holder''s widow, the plaintiff purchased the

lands on 31st October, 1906, and obtained the sale certificate on 1st December, 1906. She instituted the suit in the year 1910. It will be seen that

adverse possession commenced subsequent to the date of the mortgage, the 28th August, 1878. The suit was instituted about 20 years after

adverse possession began. If, therefore, Article 137 was applied, the plaintiff''s suit should have been dismissed. As a matter of fact, it was held by

the Full Bench that the possession of the trespasser was not adverse to the mortgagee and the result was that the suit was held to be in time. It is

noticeable that it was not argued on behalf of the defendant in that case that Article 137 applied, although if, as a matter of fact, the said Article

was applied, the result of the case would have been different. We are not prepared to say that it was due to a mere oversight that reference was

not made to Article 137; it was not referred to because it was thought clearly inapplicable.

It is necessary to deal with another contention of the appellant. He says that the plaintiff put forward a specific case of having obtained

possession in 1907 and having been dispossessed in 1908, and that the plaintiff''s suit should fail because he was unable to make out the case set

up by him. The appellant''s vakil argues that Article 142 is the Article applicable. Assuming for a moment that the plaintiff came with a specific case

of dispossession under Article 142 and that his allegation in that behalf was disbelieved by the Court, does it follow that the plaintiff''s suit should

be dismissed on that ground? Ex hypothesi his right to sue accrued only on the 5th September 1906. If he instituted the suit within 12 years from

that date we see no ground for dismissing his suit on the score that he alleged having obtained possession on a subsequent date and was

dispossessed by the defendant. The plaintiff is entitled, to say that the allegation relating to his possession and dispossession may be treated as

superfluous and that he may be allowed to rest his case upon the footing that his suit is within 12 years of the accrual of his right. The occasion for

the application of Article 142 does not arise when, upon the facts proved or admitted, dispossession cannot possibly have accrued beyond 12

years of the institution of the suit. The plaintiff could have obtained possession, if at all, only after his purchase on the 5th September, 1906, which

falls within 12 years from the date of this suit. In our opinion therefore Article 142 is inapplicable.

For these reasons we agree with the Subordinate Judge that the suit is not barred by limitation, and would dismiss the appeal with costs.

Appeal No. 83 of 1921 is also dismissed with costs.