Padma Vithoba Chakkayya Vs. Mohd.
Multani  INSC 206 (4 May 1962)
04/05/1962 AIYYAR, T.L. VENKATARAMA AIYYAR,
T.L. VENKATARAMA GUPTA, K.C. DAS MUDHOLKAR, J.R.
CITATION: 1963 AIR 70 1963 SCR (3) 229
Adverse Possession--Usufructuary mortgagee obtaining
invalid sale with consent of mortgagor--Mortgagor a minor--Na ure of possession
of mortgagee if altered.
In 1961 R executed a usufructuary mortgage of
the suit lands in favour of M. Later, in 1923 he executed a sale deed of the
same lands in favour of Rajanna, uncle of the appellant. The appellant and
Rajanna formed a joint Hindu family. As there was difficulty in obtaining
possession by Rajanna, he R and M entered into an arrangement under which the
sale deed was cancelled by making endorsements on the back of it and the lands
were sold by R to M. Rajanna died in 1930 as a minor, and in 1943 the
apppellant brought a suit against M for possession of the lands on the ground
that the cancellation of sale deed of 1923 was ineffective as it was not
registered and that accordingly the sale deed in favour of M passed no title to
him. M pleaded adverse possession on account of the invalid sale in his favour.
The suit for possession was dismissed on the
ground that the appellant had filed the suit more than three years after
Held, that though the suit for possession was
time barred the appellant could maintain a suit for redemption if M had not
prescribed title by adverse possession. M who had entered into possession as a
mortgagee could acquire title by prescription if there was a change in the
character of his possession under an agreement with the owner. The endorsement
of cancellation on the sale deed taken along with the sale deed 230 in, favour
of M were admissible to show the character of possession of M. This arrangement
would clearly show that the possession of M was adverse provided Rajanna was
not a minor and was capable of giving his consent. Though, in certain
circumstances there could be adverse possession against a minor, possession
lawful at the inception could not become adverse under an arrangement with a
minor. A minor was in law, incapable of giving consent, and there being no
consent, there could be no change in the character of possession which could
only be by consent and not by unilateral action.
Kanda Sami Pillai v. Chinnabba (1920) I.L.R.
44 Mad. 253 and Varatha Pillai v. Jeevarathnammal (1918) L R. 46 I.A. 285,
Sitharama Raju v. Subba Raju, (1921) I.L.R.
45 Mad. 361, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 620 of 1960.
Appeal by special leave from the judgment and
decree dated February 11, 1954, of the former Hyderabad High Court in Second
Appeal Suit No. 476/4 of 1954 Fasli.
Gopal Singh and B. S. Narula, for the appellant.
A. Banganatham Chetty, A. V. Rangam, A.
Vedavali and P. C. Agarwala, for respondent No. 1.
1962. May 4. The Judgment of the Court was
delivered by VENKATARAMA AIYAR, J.-This is an appeal by special leave against
the judgment of the High Court of Hyderabad whereby it affirmed the judgment of
the Court of the Additional District Judge of Adilabad dismissing the suit of
the appellant.The facts are that there was a joint family consisting of one
Chakkayya and his, younger brother Rajanna. Chakkayya died in year 1923 leaving
231 behind the appellant his son who it is said was at that time a minor a few
months old. On December 21, 1923, Rama Rao second defendant, sold the lands
which are the subjectmatter of the suit to Rajanna. It appears that as there
was some difficulty in Rajanna getting possession of the properties which were
stated to have been 'usufructuarily mortgaged to the first defendant, the
transaction of sale was cancelled and the same was endorsed on the sale deed.
Thereafter the second defendant executed a
fresh sale deed in favour of the first defendant and the latter has ever since
continued in possession. The appellant filed the present suit on February 14,
1943, for recovery of possession of these properties from the first defendant
on allegation that the first defendant was in management of the properties
belonging to the joint family of Chakkayya and Rajanna and himself, that the
sale deed in favour of Rajanna dated December 21, 1923, vested title to the
suit properties in the joint family, that the first defendant had entered on
the management of these properties also as manager on behalf of the joint
family, that Rajanna died in 1930 as a minor, that the first defendant was
discharged from the management in 1933, that he had not surrendered possession
of the suit properties to the family, but was setting up a title to them in
himself on the basis of a sale deed executed by the second defendant subsequent
to the sale deed dated December 21, 1923 in favour of Rajanna, but that the said
sale deed could confer no title on him, as the second defendant had sold the
lands previously to Rajanna, and had no title which he could thereafter convey.
It was further alleged that the plaintiff became a major sometime in June 1940
and that the suit for possession was within three years of his attaining
majority and not barred by limitation.The first defendant contested the suit.
He pleaded that he was merely a jawan or servant 232 in the service of the
family, that he was not in management of the joint family properties, that the
suit lands had been usufructuarily mortgaged to him in 1916 for Rs. 800/long
before they were sold to Rajanna in 1923, that the sale in favour of Rajanna
had been cancelled with his consent he having been paid back the consideration,
that it was thereafter that the second defendant sold the properties to him,
and that he had therefore acquired a good title to them, and that further as he
had been in possession of the properties thereafter for over the statutory
period in assertion of a title as owner, be had acquired title to them by
prescription and that the suit was barred by limitation.
He denied that Rajanna was a minor at the
relevant dates as stated in the plain. On these pleadings the District Munsiff
framed the following issues (1) Whether according to the suit (plaint), the
suit lands have been sold by defendant No. 2 in favour of Padma Rajanna through
registered sale deed dated 17th Bahman 1334-F (corresponding to 21st Dec. 1923)
? (2) Whether as stated by the plaintiff in his suit., the family of the
plaintiff and Padma Rajanna was joint ? And whether on account of the death of
the said Rajanna, the plaintiff is entitled to the suit lands ? (3) Whether the
defendant No. 2 has executed the sale deed dated 3 Farwardi 1334-F
(corresponding to 4th February 1925-AD) and what is its legal effect on the
sale deed dated 17th Bahman 1334-F. (corresponding to 21st December 1923) ? (4)
Whether at the time of the execution of the sale deed dated 3rd Farwardi 1334-F
12. 1923) the plaintiff was minor? And
whether this suit is within limitation ? 233 To what relief are the parties
entitled to ? The learned District Munsiff, Nirmal, who tried the suit held
that as the endorsement of tHE cancellation of the sale deed in favour of
Rajanna was unregistered, no title passed to the second defendant by reason of
that endorsement and that accordingly the sale by him in favour of the first
defendant conferred no title on him and further that the suit had been
instituted within three years of the plaintiff's attaining majority and that it
was in time and so he decreed the suit. Against this Judgment and decree there
was an appeal by the respondents to the Additional District Court of Adilabad,
which held that the plaintiff had not established that he had attained majority
within three years of the suit and on the finding the appeal was allowed. The
appellant took the matter in second appeal to the High Court of Hyderabad which
agreeing with the District Judge, held that the suit was instituted more than
three years after the plaintiff had attained majority and dismissed the appeal.
It is against this Judgment that the present appeal by special leave has been
The first contention that is urged on behalf
of the appellant is that the finding that the plaintiff had attained majority
more than three years prior to the suit was erroneous. But there are concurrent
findings on what is a question of fact.. and we see no sufficient reason to
differ from them.
The contention strongly urged by Mr. Gopal
Singh in support of the appeal is that the first defendant bad been put in
management of all the properties belonging to the plaintiff's family and that
having entered into the possession of the suit lands as manager on behalf of
the family, it was not open to him 'to set up a title by adverse possession,
unless he first surrendered possession of 234 the properties. On this point the
learned Judges of the High Court held that there was no satisfactory proof that
the first defendant had been in management of the properties as agent of the
plaintiff and his family. The contention of the appellant is that there is a
large body of evidence in support of the allegations in the plaint that the
first defendant was not a mere servant but manager of the properties, that he
had not gone into the box and denied them and that under the circumstances it
must be held that he entered into possession of the properties as manager and
it was not competent for him to set up a claim by adverse possession.
The respondent argues that he was merely a
jawan in the service of the family of appellant and that he had nothing to do
with the management of the properties and that as there was no evidence worth
the name in support of the allegations in the plaint, there was no need for him
to enter into the box and give evidence that he was not in management of the
land%. If the fact of this appeal turned on a determination of this question,
we should. on the materials before us, feel considerable difficulty in agreeing
with the decision of the learned Judges. The failure of the first defendant to
go into the box would have been sufficient to shift the burden of proving that
he was not the manager on to him, Vide Murugesam Pillai v.
Manickavasaka Pandara(1) and Guruswami Nadar
v. Gopalaswami Odayar (2).
But then it is pointed out by the respondent
that the suit lands had come into his possession under a usufructuary mortagage
executed by the second defendant in 1916, that there was no allegation that
this mortagage was obtained by him while he was the manager of the family
properties or on (1)  L.R. 44 I.A. 98.
(2)  I.L.R. 42 Mad. 629.
235 behalf of the family, and that when once
his possession has been traced to the usufructuary mortgage of 1916, there
could be no question thereafter of his having entered into possession of the
properties as manager on behalf of the family. Before us the appellant did not
dispute the truth of the usufructuary mortgage in favour of the first
respondent nor did he contend that in taking that mortgage the first defendant
acted on behalf of the family. Such a contention would be untenable as at that
time Chakkayya the father of the plaintiff and the manager of the joint family
was alive. That being so the question whether the first defendant is precluded
as manager from acquiring title by adverse possession does not arise for
decision because he entered into possession of the properties in his own right
as usufructuary mortgagee.
On the finding reached above that the first
defendant entered into possession of the properties as usufructuary mortgagee
in 1916, the question is what are the rights of the appellant. On the basis of
the sale deed by the second defendant in favour of Rajanna he would be entitled
to redeem the mortgage. But the present suit is not one for redemption of the
mortgage but for ejectment. and that by itself would be a ground for dismissal
of the suit. But in view of the fact that this litigation had long been
pending, we consider it desirable to decide the rights of the parties on the
footing that it is a suit to redeem the usufructuary mortgage, without driving
the parties to a separate action.
We have now to consider the defence of the
first defendant to the suit, treating it as one for redemption. Now the contention
of Mr. Ranganathan Chetty for the respondent Is that he had been in possession
of the properties as owner ever since 1923 when the second defendant sold them
to him, that he bad thereby acquired a prescriptive title to them, and that the
right of the appellant to 236 redeem was thereby extinguished. It is not
disputed that when a person gets into possession of properties as mortgagee, he
cannot by any unilateral act declaration of his prescribe for a title by
adverse possession against the mortgagor, because in law his possession is that
of the mortgagor. But what is contended is that if the mortgagor and mortgagee
subsequently enter into a transaction under which the mortgagee is to hold the
properties thereafter not as a mortgagee but as owner that would be sufficient
to start adverse possession against the mortgagor if the transaction is for any
reason inoperative under the law.
This contention, in our opinion, is well
founded. Though there was at one time a body of judicial opinion that when a
person enters into possession as a mortgagee he cannot under any circumstances
acquire a title by prescription against the owner, the law is now fairly well
settled that he can do so where there is a change in the character of his
possession under an agreement with the owner, vide Kanda Sami Pillai v.
Chinnabba (1). Now the question is was there such an arrangement ? The
contention of the respondent is that the agreement between Rajanna and the two
defendants under which Rajanna received back the sale consideration and made an
endorsement cancelling the Bale followed, as part of the transaction, by the
sale of the properties by the second defendant to the first defendant would be
sufficient to start adverse possession.
The endorsement of cancellation on the back of
the sale deed in favour of Rajanna dated December 21, 1923, has been held, as
already stated, to be inadmissible in evidence as it is not registered. The
result of it is only that there was no retransfer of title by Rajanna to the
second defendent, and the family would in consequence continue to be the owner,
and that is why the appellant is (1) (1920) I.L.R. 44. Mad. 253.
237 entitled to redeem. But the endorsement
taken along with the sale deed by the second defendant in favour of the first
defendant is admissible in evidence to show the character of possession of the
latter. Vide Varatha Pillai v.
Jeevanathammal (1). And that was clearly
adverse to the owners. The answer of the appellant to this contention is that
Rajanna himself was a minor at the time when this arrangement is stated to have
taken place and that in consequence no title by adverse possession can be
founded on it. We agree that if Rajanna was a minor when he entered into this
arrangement that would not operate to alter the character of possession of the
first defendant as mortgagee.
The respondent contended that there could be
adverse possession against a minor in certain circumstances, and relied on the
decision in Sitharama Raju v. Subba Raju(2), in support of this position. That
is not questioned, but the point for decision is whether possession lawful at
the inception can become adverse under an arrangement entered into by a minor.
Now a minor is in law incapable of giving consent, and there being no consent,
there could be no change in the character of possession, which can only be by
consent,. and not by any unilateral act. Therefore the crucial point for
determination is whether at the time of the cancellation of the sale deed dated
December 21, 1923, Rajanna was minor or major. According to the respondent he
was a major and there is evidence also on record in support of this contention.
According to the appellant Rajanna was a minor at that time and he died a minor
in 1930. On this disputed question of fact there has been neither an issue
framed nor evidence adduced. Under the circumstances we think it desirable that
the matter should be remanded to the Court of District Munsiff for a fresh
inquiry on this question. The plaintiff should (1)  L.R. 46 I.A. 285. (2)
(1921) I.L.R. 45 Mad. 361.
238 on remand be required to suitably amend
the plaint so, as to convert the suit into one for redemption of the
usufructuary mortgage of the year 1916. The first defendant will then file his
written statement in answer thereto. An issue will be framed whether Rajanna
was a major at the time when the sale deed was cancelled. If it is held that he
wag a major then the possession of the first defendant thereafter would be
adverse and on the findings given by the Courts below the suit will have to be
dismissed as barred by limitation. But if it is held that Rajanna was then a
minor, then there would be no question of adverse possession and the plaintiff
would be the entitled to redeem the mortgage. The decree of the lower court is
accordingly set aside and the matter remanded to the Court of the District
Munsiff for fresh disposal as stated above. Costs incurred throughout in all
the Courts will abide the result.