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Case Number
Advocates
  • Coyajee, with Nilkamt Atmaram, for the appellant.
  • G.N Thakor, with H.B Gumaste, for the respondent.
Judges
  • Sir Lallubhni Shah
  • Kt.
  • A.C.J
  • Fawcett, J.
Acts
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Coyajee, with Nilkamt Atmaram, for the appellant.
  • G.N Thakor, with H.B Gumaste, for the respondent.
Judges
  • Sir Lallubhni Shah
  • Kt.
  • A.C.J
  • Fawcett, J.
Acts
See more information ...
Smart Summary

Legal Opinion Summary — Shah, A.C.J.

Factual and Procedural Background

The essential facts are as follows (as found by the courts): Shidgauda died in 1894–95 leaving his widow Nilava. On 22 May 1900 Nilava mortgaged two raytava lands (the properties in dispute) with possession to Shankar Vishnu Gadgil for Rs. 1,200; that sum included satisfaction of certain debts of her late husband and Rs. 528-5-0 taken in cash by Nilava. In November 1900 Nilava sold the same property to the present defendant (her son-in-law) for Rs. 1,500 — Rs. 1,200 said to be in respect of the earlier mortgage and Rs. 300 alleged to have been paid in cash for household expenses and other debts.

The plaintiff was adopted by Nilava in November 1907; Nilava died in December 1907. On 25 March 1908 the defendant paid off the mortgage and obtained possession of the property; the courts found that Rs. 1,100 was actually paid to satisfy the mortgage.

The plaintiff filed suit on 22 December 1919 in the Athni Court seeking to set aside the sale-deed in favour of the defendant and to recover possession with mesne profits; that court returned the plaint for presentation to the proper court. The suit was refiled on 17 November 1920 in the First Class Subordinate Judge at Belgaum.

At trial the defendant pleaded that both the mortgage and the sale were executed for legal necessity and, alternatively, that the plaintiff’s claim was time-barred. The trial Judge found that the sale was not proved to be for legal necessity, that the asserted Rs. 300 cash payment was not satisfactorily established, and that the defendant had in fact paid Rs. 1,100 in March 1908. Nonetheless the trial Judge dismissed the plaintiff’s suit on the ground of limitation, holding that Article 91 of the Indian Limitation Act applied and that the plaintiff’s claim was barred.

On appeal the principal contested questions concerned (1) whether Article 91 applied and whether it was essential for the plaintiff (an adopted son) to set aside the sale-deed, and (2) whether the plaintiff’s claim was time-barred in any event — particularly when adverse possession of the equity of redemption began.

Legal Issues Presented

  1. Whether Article 91 of the Indian Limitation Act applies to a suit by an adopted son to recover immoveable property alienated by the widow and whether it is essential for the adopted son to set aside the sale-deed as a precondition to relief.
  2. Whether the sale-deed and mortgage were executed out of legal necessity (i.e., whether the alienations were valid on that ground).
  3. When the period of limitation (particularly the twelve-year period relevant to a suit for possession) began to run against the plaintiff — whether from the date of adoption (November 1907) or from the date when the defendant took overt possession (March 1908).
  4. Whether the plaintiff’s suit was barred by limitation given the time taken in the Athni Court and the dates of adoption, possession, and filing.

Arguments of the Parties

Appellant's Arguments (Plaintiff)

  • The lower Court erred in holding that Article 91 applies and in holding that it was essential for the plaintiff to set aside the sale-deed before obtaining possession; the plaintiff can claim possession without setting aside the sale, treating the sale as not operative against him.
  • If Article 91 is not applicable and the sale need not be set aside, then the plaintiff’s claim is within time (after excluding the period the suit was in the Athni Court).

Respondent's Arguments (Defendant)

  • The adopted son’s rights arose on the date of adoption (November 1907) and he should have sued within twelve years from that date; hence the claim is time-barred.
  • The defendant’s possession (or adverse possession of the equity of redemption) dates from the date of the sale deed and the sale vested the equity of redemption in the defendant; the lower Court’s conclusion that adverse possession commenced only when the defendant took possession from the mortgagee in March 1908 is said to be incorrect.
  • Contest that Rs. 300 was not actually paid as part of the sale consideration; challenge to the trial Court’s finding on that payment.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Harihar Ojha v. Dasarathi Misra Supports the proposition that a reversioner need not set aside an alienation by the widow and can sue to enforce his right after the widow's death. Used to show that a reversioner may enforce rights without first setting aside an alienation; by analogy this authority supports treating the adopted son similarly.
Rakhmabai v. Keshav Supports the same proposition concerning a reversioner's ability to sue without setting aside alienations by the widow. Relied upon to indicate established authority that a reversioner need not set aside a deed; assists the Court in comparing the adopted son’s position to that of a reversioner.
Bijoy Gopal Mukerji v. Krishna Mahishi Debi Also supports the reversioner principle described above. Again cited to demonstrate established authority that the reversioner can sue after the death of the widow without first setting aside the alienation.
Moro Narayan Joshi v. Balaji Raghunath Addresses suits by adopted sons and the applicability of Articles of the Limitation Act (noting application of Article 140 or 144 to suits by adopted sons). The Court reads this decision as indicating that Article 91 would not apply to a suit by an adopted son and that Article 144 (or 140) is the appropriate provision; used to infer that the adopted son need not be required to set aside the deed.
Ramakrishna v. Tripurabai Clarifies the position comparable to reversioner/adopted-son issues addressed by the Court. Used with Moro Narayan Joshi to make clear that, subject to differences in timing, there is no essential difference between the adopted son’s position and that of a reversioner for limitation purposes.

Court's Reasoning and Analysis

The Court proceeded in two principal strands: (A) findings of fact concerning necessity and payment, and (B) legal analysis on limitation and the appropriate Article of the Limitation Act to apply.

A. Findings of Fact

  • The Court accepted the trial Judge’s factual findings: the sale-deed of November 1900 was not shown to have been executed out of legal necessity; the alleged Rs. 300 cash payment was not satisfactorily proved; and the transaction remained largely a paper transaction until the defendant paid off the mortgage and obtained possession in March 1908.
  • The Court noted that an administrative entry in the Record of Rights for 1907–08 recorded a sale in favour of the defendant, but held that outward appearance did not amount to an overt act asserting rights under the sale deed; the first clear overt act on record was the payment to the mortgagee and recovery of possession in March 1908.

B. Limitation and Legal Principle Analysis

  • The Court rejected the lower Court’s view that Article 91 of the Indian Limitation Act applied and that it was essential for the adopted son to set aside the sale before obtaining relief. The Court found no authority supporting that requirement and held that established decisions concerning reversioners provide a persuasive parallel.
  • Comparative reasoning: although an adopted son’s rights arise on adoption (whereas a reversioner’s rights arise on the death of the widow), the Court found no essential difference that would require the adopted son to be treated differently for limitation purposes or to require setting aside the deed as a precondition to obtaining possession.
  • The Court relied on authorities (listed above) to conclude that Article 91 would not apply to the adopted son’s suit; Moro Narayan Joshi was read as indicating the applicability of Article 140 or 144 to suits by adopted sons, and it was inferred that Article 91 would not apply.
  • On the question when the period of limitation began to run, the Court considered whether the defendant was in adverse possession of the equity of redemption from the date of the sale or from the date of his overt act. The Court emphasized the need for a clear overt act by the alienee indicating assertion of rights under the sale deed when the mortgagee had actual possession. In this record the first such overt act was payment and taking of possession in March 1908.
  • Accordingly, the Court agreed with the lower Court’s factual conclusion that adverse possession, for the purposes of limitation, commenced in March 1908 rather than from the adoption date (November 1907), because there was no clear evidence of an earlier assertion of the intangible right by the defendant.
  • The Court noted that this conclusion produces an equitable result: the defendant who actually paid the mortgage is able to recover the mortgage amount, and the property ultimately goes to the rightful owner (the adopted son) upon repayment.

Holding and Implications

Core Ruling: The decree of the lower Court is reversed and the plaintiff's suit is decreed in his favour subject to payment of the mortgage amount found to have been paid by the defendant.

The court's directives (direct effects on the parties) are:

  • The plaintiff is directed to pay Rs. 1,100 to the defendant within six months.
  • Upon payment of Rs. 1,100 within six months, the defendant must hand over possession of the properties in suit free from all encumbrances.
  • The plaintiff must pay half the costs of the defendant in the lower Court and shall recover the costs of the appeal from the defendant.
  • If the plaintiff does not make the required payment within six months, he shall be debarred from all right to possession of the property when the decree is made final.

The opinion applies and relies upon earlier decisions to determine which Article of the Limitation Act governs suits by adopted sons and to fix the commencement of adverse possession; the decision resolves the parties' rights for the present case but does not purport to announce a novel general rule beyond those applications.

Decree reversed.
Show full summary ...

    Hanamgowda Shidgowda Patil v. Irgowda Shivgowda Patil

    Shah, A.C.J:— The facts necessary to understand the points arising in this appeal may be briefly stated. One Shidgauda died in 1894-95 leaving a widow Nilava. On May 22, 1900 she mortgaged the two raytava lands which are now in suit with possession to one Shankar Vishnu Gadgil for Rs. 1,200. The consideration was made up of certain debts of her husband to be satisfied and Rs. 528-5-0 taken in cash by Nilava at the time for her maintenance, and for the satisfaction of miscellaneous debts incurred by her and her husband. Six months after that, i.e, in November 1900, Nilava sold the property in suit to the present defendant for Rs. 1,500, Rs. 1,200 out of which were in respect of the mortgage just referred to, and Rs. 300 were stafed to have been taken in cash to meet the expenses of household affairs in those days of famine and to pay off other debts. The defendant was the son-in-law of Nilava. In November 1907 the plaintiff was adopted by Nilava, and Nilava died in December 1907. On March 25, 1908, defendant paid off the mortgage of May 22, 1900, and obtained possession of the property. It is found that Rs. 1,100 were paid in fact to satisfy that mortgage.

    On December 22, 1919, the plaintiff filed a suit in the Athni Court for setting aside the sale-deed passed by Nilava in favour of the defendant, and to recover possession of the plaint lands with mesne profits; but it was found that that Court had no jurisdiction to entertain the suit with the result that the plaint was returned for presentation to the proper Court. The suit was then filed on November 17, 1920, in the Court of the First Class Subordinate Judge at Belgaum. The defendant pleaded that both these alienations, one by way of mortgage and the other by way of sale, were for legal necessity, and that in any case the plaintiff's claim was time-barred.

    The learned trial Judge examined the evidence relating to the alleged necessity for these alienations, and he came to the conclusion that the sale to the defendant was not proved to be for legal necessity. He was not satisfied that Rs. 300, said to have been paid in cash, were in fact paid. But he held that the transaction was not a nominal and colourable transaction, and he also held it proved that the defendant had actually paid in March 1908, Rs. 1,100 to the mortgagee for the satisfaction of the mortgage of May 22, 1900. The learned Judge, however, came to the conclusion that the plaintiff's claim was time-barred. He held it to be time-barred on the ground that it was essential for the plaintiff to set aside the sale-deed in favour of the defendant, and that Article 91 of the Indian Limitation Act, Schedule I, would apply to such a claim. He found, however, as a fact that the defendant obtained possession of the property in March 1908. He also found that the time taken up by the plaintiff in prosecuting his remedy in the Athni Court should be excluded, and he expressed the opinion that if Article 91 were not applicable, the plaintiff's claim would be in time as being within twelve years from the date when the defendant's possession became adverse to the plaintiff deducting the time occupied in the Athni Court. In the result, though he found that the defendant had paid off the mortgage, and that the plaintiff was otherwise entitled to the relief subject to the payment of Rs. 1,100, he dismissed the plaintiff's suit on the ground of limitation.

    In appeal it has been urged on behalf of the appellant that the lower Coart is not right in its view that Article 91 is applicable to this case, and that it is essential for the plaintiff before he can get this relief to set aside the sale in favour of the defendant. It is urged that it is open to him to claim possession of the property without setting aside the sale, treating the sale as not being operative against him. It is also contended that if that view is accepted, the conclusion of the lower Court is right that otherwise the claim is in time. On behalf of the respondent it is contended that the right of the adopted son came into existence on the date of the adoption, and that it was necessary for him to sue the defendant within twelve years from that date, as he must be treated immediately on adoption to be in adverse possession of the equity of redemption against him. It is urged that the lower Court's view that the adverse possession commenced really when the defendant got possession from the mortgagee on March 25, 1908, is not correct, and that the period of limitation really commenced to run against the plaintiff from the date of the adoption. If tint view is accepted the plaintiff's claim having been brought more than twelve years after that date, (even excluding the time occupied in the Athni Court) it is barred. It is not seriously contended on his behalf that Article 91 would apply. Further it is urged that the lower Court's finding as to the receipt of cash consideration of Rs. 300 is not right.

    As regards this question of fact, in spite of the argument of the respondent to the contray, we are satisfied that the view taken by the lower Court is right, and it is not satisfactorily proved in the case that there was any necessity to execute this sale-deed at the time. The mortgage was effected only a few months before, and there could have been no pressure because there was a condition in the mortgage that the money was to bo paid in two years. The evidence as to the payment of Rs. 300 has been properly appreciated by the learned Judge; and no good reason is shown for holding that the view taken by the lower Court on this point is not right.

    We, therefore, accept the facts found by the lower Court. The sale-deed remained practically a paper transaction from 1900 up to the time the defendant paid off the mortgage in March 1908 and obtained possession from the mortgagee. It has been pointed out to us that in the revenue year 1907-08 an entry was made in the Record of Rights that there was a sale in favour of the defendant. That, however, does not alter the position, that so far as the outward appearances went, beyond taking the document in 1900 the defendant who was the son-in-law of Nilava did nothing to show that he was asserting his right under the sale deed. The first tangible act on his part, of which we have evidence on this record, is the payment made by him to the mortgagee in March 1908, and the recovery of possession of the lands from the mortgagee at that time.

    The first point to be considered is whether the lower Court's view that it was essential for the plaintiff to set aside the sale under Article 91 is correct. We are of opinion that the view of the lower Court is not right, and is not supported by any authority. So far as we can see it is opposed to the decisions of this Court to which we shall presently refer. It may be taken as established, and there is ample authority for the proposition, that in the case of a reversioner it is not essential for him to set aside any alienation by the widow, but that he could sue to enforce his right as a reversioner without setting aside the alienation within the period prescribed by the Indian Limitation Act after the death of the widow. That position is supported by the decisions in Harihar Ojha v. Dasarathi Misra, Rakhmabai v. Keshav and Bijoy Gopal Mukerji v. Krishna Mahishi Debi(3). That is not in dispute. But the learned Judge apparently is of opinion that the case of a reversioner stands on a different footing from that of an adopted son. It is true that the case of an adopted son, with which we are concerned now, stands on a different footing in this sense that the rights of the adopted son come into existence as soon as he is adopted by the widow, and the rights of the widow as the heir of her husband come to an end on adoption, while in the case of a reversioner his rights come into existence on the death of the widow. Subject to that important difference, there is no essential difference between the position of the adopted son seeking to enforce his rights with reference to the property alienated by the widow before the adoption and that of the reversioner seeking to enforce his rights with regard to property alienated by the widow before her death. The decisions of this Court in Moro Narayan Joshi v. Balaji Raghunath and Ramakrishna v. Tripurabai make this position clear. Though these decisions do not directly deal with the question as to whether it is essential for the adopted son to set aside a deed or not, it seems to us that it is necessarily involved in the decision in Moro Narayan Joshi v. Balaji Raghunath where it was held that to a suit by the adopted son Article 140 or 144 would apply. The leaning of the Court was distinctly in favour of applying Article 144 to a suit by the adopted son. But it was not suggested in that case that Article 91 would apply, and though on the facts of that case it may be said that it made no difference whether Article 91 would apply or Article 144 or 140 would apply, it seems to us to be a fair inference from the judgments in that case that Article 91 would have no application. Besides there is no reason why the adopted son should be required to set aside the deed any more than a reversioner. It is clear, therefore, that the view taken by the lower Court as to the application of Article 91 and as to the necessity on the part of the adopted son to set aside the sale is not right.

    The real answer which the respondent has attempted to offer in support of the decree of the lower Court on the question of limitation is not that it is essential for the adopted son to set aside the sale, but that in fact the suit has not been brought within twelve years from the date on which his rights accrued. His rights accrued in November 1907, and the suit in the Athni Court was filed in December 1919. It is urged that the claim is beyond time on that ground, as ever since the date of the sale deed the equity of redemption was vested in the defendant, and he was in possession and enjoyment of the equity of redemption as from that date. The rights of the adopted son accrued on his adoption, and applying Article 144 to his claim we have to consider whether his present claim is in time. In substance this is a suit for possession of immoveable property, and by way of reply it is urged that the defend ant has been in adverse possession of the equity of redemption for over twelve years. It is always a difficult thing to determine as to when the adverse enjoyment of the right of the equity of redemption commences when the actual possession of the property is with the mortgagee as in the present case. In a case of this kind, unless we have some clear indication in the shape of an overt act on the part of the alienee to indicate that he was asserting his rights under the sale deed, it is difficult to say that he was in possession of that right. Taking the situation as it was in November 1907 when the plaintiff was adopted, it appears that shortly after that the widow died; and we find that the defendant paid off the mortgage and took possession of the mortgage lands in March 1908. That was the first overt act, so far as this record can show, on the part of the defendant, when he really came into possession of his rights under the sale-deed. As against this, it is urged that at least as regards the equity of redemption, he must be taken to have been in adverse possession since November 1907. The interval is very short and, as we have said, there was no clear indication by any overt act on the part of the defendant that at that date he was actually in possession of this intangible right against the adopted son. The first indication that we have after the adoption of any assertion on the part of the defendant of his right to this property is when he took possession of the property in March 1908. In the circumstances of this case, it seems to us that the lower Court was right in its conclusion that the adverse possession of the defendant really commenced in March 1908 when he took possession of the mortgaged property. This conclusion appears to work out a just result namely that the defendant who has paid the mortgage amount to the mortgagee will be able to recover his mortgage amount and the property will go to the rightful owner, the adopted son.

    We, therefore, reverse the decree of the lower Court and pass a decree in favour of the plaintiff, directing that he should pay Rs. 1,100 to the defendant within six months, and on his paying that sum the defendant should hand over possession of the properties in suit free from all incumbrances. The plaintiff to pay half the costs of the defendant in the lower Court, and to get the costs of the appeal here from the defendant. If such payment is not made in six months, the plaintiff shall be debarred from all right to possession of the property on the decree being made final.

    Decree reversed.
    R.R
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    Comments

    Hanamgowda Shidgowda Patil v. Irgowda Shivgowda Patil
    (Jun 25, 1924)