Nandana Menon, J.:— This second appeal has been preferred by the defendant in a suit for declaration of title and recovery of property and is directed against the decision of the Additional District Judge of Quilon decreeing the suit and thus reversing the judgment of the trial Court. The plaint schedule property bearing Sy. No. 121/12-C was mortgaged along with Sy. Nos. 121/12-A and B being six paras of paddy land in extent by one Sankaran Padmanabhan in 1052 in favour of the predecessor in interest of the defendant. Two puarkkadams were executed in 1060 and 1067. On 20-11-1098 the plots bearing Sy. No. 121/12-A and B were surrendered by the mortgagee to the family of the mortgagor on receipt of 2300 fanams and a receipt Ext. I given to the mortgagee.
2. The plaintiff obtained an assignment of the rights of the mortgagor and came forward with the suit claiming that he is entitled to redeem and recover possession of Sy. No. 121/12-C remaining in the hands of the mortgagee on payment of 100 fanams which, according to him, was the balance of the mortgage amount left unsatisfied at the time of Ext. I. The defendant contended that the mortgage and purakkadams were only for 2300 fanams, that the whole of the mortgage amount was paid at the time of Ext. I, that the mortgage was thus extinguished, that he was holding the property from that date adversely to the mortgagee and the plaintiff was hence not entitled to any redemption or recovery as sought for.
3. The trial Court held that the mortgage amount was only 2300 fanams, that after Ext. I the possession of the plaint schedule property by the predecessors-in-interest of the defendant was not as mortgagees and hence the possession was adverse and the suit was barred being brought beyond 12 years from that date. The lower appellate Court reversed the said decision finding that though the whole of the mortgage amount of 2300 fanams was paid to the mortgagee when Ext. I was obtained the relation between the parties as mortgagor and mortgagee continued as such and there was no bar of limitation for redemption and recovery.
4. On behalf of the appellant it is contended that after Ext. I the possession of the defendant was independent of the mortgagor and adverse to him, and that the lower appellate Court was wrong in holding otherwise.
5. So the sole question that arises for consideration is as to what is the effect of the surrender of part of the mortgage security on receipt of the whole of the mortgage amount as evidenced by Ext. I. Ext. I says that the properties mentioned there were then being held under the mortgage deed of 1059 and the purakadoms of 1060 and 1067 and that they were surrendered on receipt of 2300 fanams charged upon them, that all documents and michavaram receipts were handed over to the mortgagor and mortgagee released all his rights.
6. The lower courts have concurrently found that the mortgage amount was only 2300 fanams. So it is seen that the whole of the mortgage amount was paid and all the documents returned. From Ext. I it is clear that the parties were under the impression that the relationship of mortgagor and mortgagee was extinguished. If any item was intended to be left with the mortgagee some reference would have been made in the deed.
7. So it is clear that there was no intention in the minds of the parties that Sy. No. 121/12-C was to continue in the possession of the mortgagee to be redeemed or recovered by the mortgagor at a future time. The question is what is the effect of such possession of the defendant after that. Coming to the decision cited, in Sudarshan Das Shastri v. Ram Prasad, ILR 33 All 97 (A), it was a question of the right of redemption arising out of a usufructuary mortgage.
8. There, certain provisions of Bengal Act 15 of 1793 came up for consideration. That section stipulated the interest which was to be allowed on mortgage securities executed after the particular date and prescribed that all such mortgages are to be considered as virtually and in effect cancelled and redeemed whenever the principal sum with simple interest due upon it shall have been realised from the usufructs of the mortgaged property.
9. It was contended that after the extinguishment of the mortgage as provided therein the mortgagee held the property adversely to the mortgagor. Negativing this plea it was observed as follows at page 98:
“We have considered the provisions of S. 10 of the Regulation relied on and we are of opinion that it lends no support to the argument addressed, to us. The section which is relied on simply means that once a mortgage debt has been satisfied by receipt of rents and profits the mortgage is to be considered as satisfied and discharged. The word ‘redeemed’ as used in the section was clearly not used in the sense that the mortgage had been redeemed in the full sense of that word, that is, satisfied and possession given to the mortgagor.
So long as the property remains in the hands of the mortgagee it cannot be said that the mortgage has been redeemed. A right to redeem is a right to pay or tender the mortgage money, and where the mortgagee is in possession to obtain from him delivery of possession. See as to this Section 60 of the Transfer of Property Act. There is therefore no force in this contention.”
10. It is clear that in such cases the mortgagee never had any intention to hold the property otherwise than under the mortgage from the date on which by the appropriation of the usufructs of the mortgage happened to be extinguished. Mt. Ram Kuer v. Govind Ram, AIR 1926 All 62 (B), dealt with a case where after the satisfaction of the mortgage debt a mortgagee and after him his wife remained in possession of a portion of the mortgaged property.
11. When recovery of it was sought for it was held that the suit was barred as the plaintiff failed to bring the suit within 12 years from the extinguishment of the mortgage on which date they were entitled to immediate possession of it, though in that case the fact that the widow had no manner of right to be in possession as she was not the heir entitled to hold the property was emphasised.
12. In Mt. Beti Bai v. Tantya Singh, AIR 1926 All 136 (2)(C), what was pointed out was only that as in many cases the mortgage debt of a usufructuary mortgagee is discharged out of the usufruct and yet if he continues to be in possession such possession cannot be deemed to have become adverse from the moment when the debt was paid off. The circumstances here are entirely different. Here a mortgage debt was extinguished by a positive act on the part of the mortgagor and surrender of a portion of the mortgage security obtained.
13. Then coming to Achuthan v. Varki, 26 Trav LJ 736 (D), relied upon on behalf of the plaintiff, when a suit for redemption was brought the mortgagee contended that the mortgagor's family had become extinct and as a result of escheat proceedings patta had been granted and he was holding the property adversely to the mortgagor from that date. At page 738 it was observed as follows:
“The next question for consideration is whether the mortgagor's right had been extinguished by the adverse possession of the mortgagee. It is an elementary principle of law that a mortgagee is estopped from denying the title of his mortgagor. If he should acquire title by adverse possession it must be shown not only that he denied the title of the mortgagor but that denial was known to the mortgagor and that he continued in possession for the statutory period after the mortgagor had knowledge of the denial.
There is no evidence in this case that the defendant ever denied the title of their mortgagors. On the other hand they explicitly admitted their title in their statement in the escheat enquiry. It has not been proved that Pattah was issued to the defendant and with the knowledge of the mortgagors. We are, therefore, of opinion that the view of the lower appellate Court that the defendants have perfected their title by adverse possession is wrong.”
14. The principles laid down in this decision are quite correct but the facts are not applicable to the present case, for, in the above case there was no payment of the mortgage amount by the mortgagor or any act on his part, going to show that he was redeeming the mortgage as is the case here as evidenced by Ext. I. So these decisions are not applicable to the present caste.
15. Coming to the decisions dealing with cases similar to the one herd in Keshablal v. Bholanath, AIR 1926 Cal 910 (E), the whole of the mortgage amount was paid off but a part of the mortgage security remained in the hands of the mortgagees. When a suit for redemption was brought the mortgagees contended that they were holding under an oral sale from the mortgagor and even otherwise the suit was barred on account of adverse possession being brought beyond 12 years of the extinguishment of the mortgage by surrender of part of the mortgage security.
16. The learned Judges while remanding the suit for fresh findings as to whether the part of the security then found in the possession of the mortgagees had also been surrendered to the mortgagor on the extinguishment of the mortgage and had subsequently passed to the mortgagee and other relevant points observed as follows at page 912:
“The question whether the possession of the mortgagee after the mortgage debt has been satisfied is adverse to the mortgagor or not, is always a question of animus or intention of the parties concerned. The whole of the circumstances will have to be considered in order to find out whether the mortgagees in the present case continued in possession as mortgagees or as owners in respect of the property.”
17. After remand again the matter came up before the High Court in Keshablal v. Bholanath, AIR 1930 Cal 402 (F). The findings of the lower Courts that as the mortgagees continued to be in possession of the portion of the mortgage security in question even after the extinguishment under the mortgage their possession was adverse to the mortgagor was challenged.
18. The learned Judge held that the circumstances showed that the property was adversely held and dismissed the appeal. Habibullah v. Abdul Hamid, ILR 34 All 261 (G), was relied upon by the appellant there. That is a case of a usufructuary mortgage. The learned Judge distinguished it on that ground. The following observations beginning from page 403 may be pointed out:
“The facts of the present case are very different from the facts of the Habibullah v. Abdul Hamid (G). In the Habibullah v. Abdul Hamid (G), the mortgagor, unless a regular accounting was held could not be in a position to know at what particular point of time the mortgage debt had been satisfied. In the present case, however, the mortgage debt was satisfied not from the usufruct of the property but by actual cash payment made by the mortgagor from the consideration money which he obtained by a sale of 2 bighas of land to Ananta and Doyal. In the present case the mortgagor perfectly knew that the mortgage debt was satisfied and he perfectly knew also at what particular point of time it was so satisfied. The learned Subordinate Judge as his judgment will show, appears to have considered the circumstances of the case as also the intention of the parties and it was after a consideration of all these that he came to his finding that the possession of Ananta and Doyal since 1929 was possession not as mortgagees but as owners of the property and on that finding he held that possession was adverse to the mortgagor Kinu.”
19. The same principle was laid down in Khushala v. Bishan Das, AIR 1925 Lah 616 (H). These decisions fully support the position of the appellant. In the present case there was the conscious act on the part of the mortgagor of paying the mortgage amount, getting possession of part of the mortgage security, obtaining all the deeds back from the mortgage and executing a registered receipt as Ext. 1.
20. In the face of that it is idle to contend that the parties had any intention to continue the jural relationship of mortgagor and mortgagee after that date. So the mortgagee could not have had any intention to hold the plaint schedule property under the old relationship. This being a case where the mortgagor had full knowledge of all the circumstances no other conduct on the part of the mortgagee is necessary to evidence assertion of hostile title.
21. Section 60 of the Transfer of Property Act dealing with the right of the mortgagor to redeem states that when the principal money has become due the mortgagor has the right on payment or tender of the mortgage money, to require the mortgagee to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property, obtain delivery of the property and to have an instrument executed evidencing the extinguishment of the mortgage.
22. All the processes contemplated herein were gone through. But a portion of the mortgage security was left in the hands of the mortgagee. So the contention that after Ext. I the defendant was not holding adversely to the mortgagor cannot stand. Hence the suit brought beyond 12 years from the date of Ext. I is clearly barred by limitation. So the lower appellate Court was wrong in reversing the decision of the learned District Munsiff. In the result, the appeal is allowed with costs throughout and the suit dismissed.
23. Appeal allowed.