Madras High Court
Elumalai (Died) And Others vs Ramasamy Naidu (Died) And Others on 12 March, 1996
Equivalent citations: AIR1996MAD423, AIR 1996 MADRAS 423, (1996) 2 MAD LW 102 (1997) 1 CURCC 10, (1997) 1 CURCC 10
JUDGMENT
1. The above Second Appeals arise out of a common judgment of the learned Subordinate Judge, Kancheepuram and the decrees passed on 30-6-1981 in A.S. Nos. 117 and 132 of 1976. S.A. No. 343 of 1983 has been filed against the judgment and decree in A.S. No. 117 of 1976 on the file of the learned Subordinate Judge. Kancheepuram and S.A. No. 344 of 1983 has been filed against the judgment and decree in A.S. No. 132 of 1976.
2. One Govindammal, widow of late Kanniappa Reddy and V. Elumalai, son of Vajravelu filed O.S. No. 404 of 1973 on the file of the District Munsif's Court, Thiruthani, for redemption of the suit properties from the registered simple mortgage deed dated 1-10-1923 executed for Rs. 600/- on the ground that the debt must be deemed to have been duly discharged and to hand over the mortgage deed and cancel the same or in the alternative to determine the amount, if any due from the plaintiffs for granting redemption of the mortgage and to direct the defendants to deliver possession of the hypotheca to the plaintiffs. The case of the plaintiffs in the Courts below was that the suit properties originally belonged to the husband of the first plaintiff. T. Kanniappa Reddy, that he had executed a simple mortgage on 1-10-1923 in favour of Duraisami Reddy, the deceased-husband of the 7th defendant and the father of the 8th defendant for Rs. 600/- in respect of the suit properties, that the said Kanniappa Reddy had put Duraisami Reddy in possession to enjoy the lands in lieu of interest payable under the said mortgage debt, that the mortgagee died on 13-8-1967 without making any demand for payment and the mortgagor also died in 1946 leaving his widow, the first plaintiff to succeed to his estate, that since the mortgagee has been in possession of the properties for more than 30 years, under Tamil Nadu Act IV of 1938 the debt stood wiped "out, that the mortgagee appear to have transferred item No. 3, of the suit properties in favour of the 6th defendant and item Nos. 5 and 6 in favour of Thangavella Kuppi Reddy, the deceased-father of the 4th defendant and the husband of the 5th defendant, that these transfers are invalid and the transferees cannot derive any interest or right, that defendants 7 and 8 who are the legal heirs of the deceased-Duraisamy Reddy are in possession of other items and that the defendants are liable to deliver possession of the properties to the first plaintiff and pay mesne profits. The first plaintiff has executed settlement deeds dated 29-1-1974, 30-4-1974 and 10-10-1974 in respect of the suit properties in favour of the second plaintiff. Since both the plaintiffs were ready and willing to redeem the mortgage, the suit came to be filed.
3. Defendants 1 to 3 and 5 have stated that the first plaintiff succeeded to the estate of Kanniappa Reddy, that since it was alleged that the debt was wiped out by 1-10-1953 itself and the relationship of mortgagor and mortgagee has thereby ceased, the possession of the mortgagee and his successor-in-interest from 1-10-1953 became adverse to the mortgagor, that the first plaintiff had sold suit items 4 and 5 on 24-11-1952 to the father of defendants 1 to 3 and 5, Kuppi Reddi and after the same, the plaintiffs cannot maintain the present suit in respect of the said items and that defendants 1 to 3 and 5 and their predecessor-in-interest have enjoyed the said items for more than the statutory period and perfected title by adverse possession also. So far as the 6th item is concerned, it is said to be the ancestral property of the father of defendants 1 to 3 and 5 and he got the same for his share in a partition effected 40 or 50 years ago and Kanniappa Reddy had no right to 6th item and the mortgagee was also not in possession of the same. According to these defendants, since the mortgage was not subsisting, the question of redemption does not arise and the plaintiffs must be held to have lost their rights in the suit properties, if any and the suit was also barred by limitation.
4. Defendants 6 to 8 have stated in their written statement that Kanniappa Reddy orally sold all the properties covered under the usufrucuary mortgage of the year 1923 to the mortgagee Duraisamy Reddy, the husband of the 7th defendant and father of the 8th defendant, that thereafter patta was transferred in the name of Duraisamy Reddy, that the mortgage was cancelled when the properties were orally sold, that the mortgagee sold suit item No. 3, to the 6th defendant, which sale was said to be valid, that defendants 7 and 8 are in possession of items 1, 2 and 2-B, but they are not in possession of other items, that since the mortgage was not subsisting, the relationship of mortgagor and mortgagee ceased even in the year 1953 and the possession of the lands by the mortgagee became adverse to the interest of the mortgagor, and that they have perfected title by adverse possessions.
5. 9th defendant has in his written statement contended that the new survey number for item No. 3, is 260/10 but not 219/10, that the said item was purchased by the joint family of the 6th defendant from Dommara Pandurangam and others 20 years ago, that in the Family partition, it fell to the share of Dharma Naidu, who is said to be in possession of the same, that the third item did not belong to the deceased Duraisamy Reddy and that defendants 6 to 9 are unnecessary parties.
6. Defendants 2 to 6 have also questioned the truth and validity of the settlement deed and contended that no title had been derived by the second plaintiff under those settlement deeds.
7. On the above claims and counterclaims, the suit was set for trial and both parties have adduced oral and documentary evidence. After considering the materials on record, the learned trial Judge by his judgment and decree dated 17-8-1976 decreed the suit in respect of items 1 to 3, 7 and house sites 11 (a) and 11 (b). So far as item Nos. 4 and 5 are concerned, learned counsel for the plaintiffs himself has made an endorsement giving up claims regarding the said items and, therefore, the relief prayed for and the consideration were confined only to other items. In other respects, the suit was also dismissed. Aggrieved, 9th defendant has filed A.S. No. 117 of 1976 and defendants 7 and 8 have filed A.S. No. 132 of 1976. On account of the death of some of the parties on record, steps have been taken and permission has been separately issued to bring on record the legal representatives of those parties. The plaintiffs have filed cross-objections in respect of certain items challenging the finding of the learned Trial Judge holding that items 6 to 8 and 10 did not form part of the mortgage deed Ex. A. 1. The learned first appellate Judge also has gone into the matter and allowed the appeals, while rejecting the memo of cross-objections filed by the plaintiff in A.S. No, 132 of 1976 and ordered the dismissal of the suit. The learned first appellate Judge was of the view that the suit items 4 and 5 were not covered under the suit mortgage deed and they have been sold also and in respect of items covered by the suit mortgage, which stood extinguished as early as in the year 1935, possession of the properties by the mortgagee and his successors and alienees after 1935 was adverse and not permissive occupation and that the mortgagee and his successors and alienees have acquired title in respect of the same by efflux of time. The suit was also held to have been barred by limitation. Aggrieved, the second plaintiff has filed the above second appeals in this Court.
8. At the time of admitting the above second appeals, it was considered that the appeals involve consideration of a substantial question as to the legality and propriety of the findings of the first appellate Court on the issue relating to the perfection of title by adverse possession and bar of the claim of the plaintiffs on account of the expiry of the period of limitation.
9. Learned counsel for the appellants has contended that the first appellate Court committed an error in reversing the judgment and decree of the trial Court and that the conclusion that the suit was barred by time cannot be sustained in law. Learned counsel appearing for the respondents contended that the question of limitation as also the question of title by virtue of the purchase as also on account of adverse possession are pure questions of fact and the lower appellate Court as the first appellate Court was entitled to appreciate the evidence as it appeals to it and inasmuch as the appreciation of evidence by the first appellate Court and the findings recorded thereon could not be said to be vitiated by any patent error of law, there is no need for this Court to interfere with the judgment and decrees of the first appellate Court in the above Second Appeals.
10. I have carefully considered the submissions of the learned counsel appearing on either side. The learned counsel also invited my attention to the findings of both the Courts below in respect of their respective standpoint by taking me through the judgments, at length, of the Courts below. The first appellate Court on going through the documentary evidence has recorded the finding that since the suit mortgage happened to be a mere simple mortgage and notwithstanding that the mortgagee was shown to be in possession in addition to the fact that the alienees of the mortgagee of portions of properties were also proved to have been asserting their rights and have been shown to be in enjoyment of the properties for more than 12 years, the mortgagor must be held to have lost his right of redemption as also his title over the properties and, therefore, the suit for recovery of possession on redemption could not be maintained. Since indisputably the mortgage is dated 1-10-1923 and the mortgage is pure and simple one and not an usufractuary mortgage, the possession of the defendants became adverse to the interest of the mortgagor and the plaintiffs and their predecessors-in-interest lost their title and right to recover possession as well as the right of redemption long prior to the institution of the suit. The first appellate Court declined to countenance the claim of the plaintiffs that the mortgage in question was an usufructuary mortgage since in the view of the first appellate Court, countenancing of such claims would amount to acting against the terms of Ex. A.1, which categorically shows it to be only a simple mortgage. The document as such, does not disclose any arrangement between parties to let the mortgagee in possession, as claimed by the plaintiffs for enjoyment of the same in lieu of interest. No scrap of paper to give credence to such a theory appears to have been produced, to prove such a claim nor anyone connected with the document Ex. A. 1, has been examined to prove such a fact, which would go directly contradictory to the recitals in Ex. A.1. The learned first appellate Judge ultimately came to the conclusion that since the mortgage was only a simple mortgage, the right to redeem the same was extinguished at the expiry of 12 years, that is, in the year 1935 and even if the plaintiff had 12 years from the said date to recover possession, the suit of the year 1923, at any rate, has to be held to be squarely barred by limitation. As for the relief of redemption, it is claimed that since the right to redeem the mortgage came to an end in 1935, the question of claiming relief under Tamil Nadu Act IV of 1938 did not arise. The first appellate Judge also held that possession of the defendants was not of permissibe nature and that the defendants have been, on the other hand, found to be asserting their rights independently and they were proved to have acquired title by adverse possession.
11. Learned Counsel for the appellants has placed reliance upon the decision in S.L. Jetha v. Kalidas Devchand, . The said decision, in my view, will have no application to the facts of the present case. The decision in Keshab Lal v. Bholanath (AIR 1926 Cal 910) is that of a Division Bench of the Calcutta High Court, wherein it has been held that possession of mortgagee continuing in possession after satisfaction of debt is not necessarily adverse and it is always a question of animus or intention of the parties concerned. In Kasthuri Devi v. Chuni Lal (AIR 1959 Pun 361), a Division Bench of the Punjab High Court held that possession of mortgagee after extinguishment of mortgage without any open or express repudiation of the relationship created by the mortgage is not in contemplation of law holding adversely to the mortgagor, whatever may be his secret intention. In Sheodhari Rai v. Suraj Prasad Singh the apex Court held that permissive possession cannot be adverse till the defendant asserts adverse possession. In Lalji Jetha v. Kalidas Devchand , it was held that once there was a sale of mortgaged property by mortgagor to mortgagee even though subsequently the sale found to be voidable, the character of possession of the mortgagee as absolute owner remains unaffected and can ripen into title to property by prescription.
12. The facts of the case which have been found by the first appellate Court on the basis of evidence on record are that the mortgage covered by Ex. A. 1, was a simple mortgage of the year 1923, that the mortgagee, after certain period, has been found to be dealing with the properties as if they are their own not only by asserting title and enjoying the same, but also by conveying portions of the properties to third parties. In the light of the above proved circumstances, the plea of permissive occupation, in my view, has been rightly rejected by the first appellate Court. The first appellate Court as the final Court of finding of facts has chosen to appreciate the evidence on record and draw inferences and conclusions different from those arrived at by the trial Court. But at the same time such findings of the first appellate Court have not been shown to be vitiated due to any patent error of law or perversity of approach and the appellant could not successfully dislodge the findings recorded by the first appellate Court.
13. In Bala Subramania Thevar v. Kumaraswami Thevar ((1963) 2 Mad LJ 528), Justice Veeraswami, as the learned Judge then was, had an occasion to deal with almost a similar problem and the illustrious Judge in his usual and unique manner has observed as follows:--
"The second point pressed on behalf of the appellant relates to limitation. The defendants pleaded an oral sale by virtue of which their father came by possession of the suit properties. This case did not find acceptance in the Courts below. Nor would they hold that the defendants and their father trespassed upon the properties but they were inclined to think, especially the lower appellate Court that defendants' possession through their father was probably traceable to a kind of permissive possession. This impression, the lower appellate Court formed on the circumstance that soon after executing the mortgages, both the brothers left this country for Singapore and never returned, that the mortgage bore a high rate of interest, one of them being as high as 24 per cent., and that it was possible that defendants' father was let in possession by them on the understanding that he might appropriate the income from the lands in lieu of interest. Learned Counsel for the appellants strenuously urged that the defendants and their father having been in continuous possession of the properties ever since 1927 it must be taken to be adverse and that the finding of the Courts below that possession was traceable to some kind of permission is not supported by evidence. On a careful consideration, I am inclined to accept this contention. One starts with this hard fact which is not even now disputed, namely, that the defendants and their father have been in possession ever since 1927 and that the mortgage being simple did not entitle the mortgagee to enter upon possession. There is nothing literally in the evidence, oral or documentary to show that the mortgagee got into possession QUA mortgagee. The mortgages of the years 1919 and 1925. The circumstances of the case do not warrant the inference that the mortgages and the fact of the mortgagee getting into possession of the property formed part and parcel of one transaction. It may be mentioned that there is no basis for regarding the two as forming one transaction. The lower Appellate Court when it negatived the case of the trespass did not refer to any evidence on which it founded its view. When the facts are that the mortgagee who was not entitled to be in possession, has been in possession for a long time and it is not shown that the mortgagee QUA mortgagee got into possession, it is difficult to resist the conclusion that no evidence whatever to support the case of permissive possession. Permissive possession was the definite and plain case which the plaintiff failed to established. On these facts, I consider that the suit for redemption of the simple mortgages is barred by time."
The above dicta laid down squarely answers the issue against the plaintiffs and I am in entire agreement with the opinion expressed by the learned Judge.
14. As rightly contended for the respondents, the issues involved are really pure questions of fact and the mere fact that the ultimate position depends upon the application of law, the question arising for consideration cannot on that account be considered to be of any substantial question of law. For all the reasons stated, I do not find any merit in the above second appeals. The appeals, therefore, fail and shall stand dismissed. There will be no order as to costs.
15. Appeals dismissed.