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PETITIONER: PADMA VITHOBA CHAKKAYYA

       Vs.

RESPONDENT: MOHD. MULTANI

DATE OF JUDGMENT: 04/05/1962

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA GUPTA, K.C. DAS MUDHOLKAR, J.R.

CITATION:  1963 AIR   70            1963 SCR  (3) 229

ACT: Adverse   Possession--Usufructuary    mortgagee    obtaining invalid sale   with   consent  of   mortgagor--Mortgagor   a minor--Na ure of possession of mortgagee if altered.

HEADNOTE: 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  appel- lant.   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 attaining majority. 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

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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, relied on. Sitharama  Raju  v. Subba Raju, (1921) I.L.R. 45  Mad.  361, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 620 of 1960. Appeal by special leave from the judgement 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  subject- matter of the suit to Rajanna.  It appears that as there was some  difficulty in Rajanna getting possession of  the  pro- perties  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 some time 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

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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  (21.               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 filed. 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

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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) [1917] L.R. 44 I.A. 98. (2) [1919] 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

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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

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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) [1918] 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.                    Case remanded. 239