Venkata Krishna Moorthi v. Bheemakka

1. There is no right of reentry expressly provided for in Ex. A in favour of the mortgagee (plaintiff's predecessor in-title) and it is arguable that on the failure to pay the first installment due under Ex. A, the mortgage became a transaction of simple mortgage for all purposes, even assuming that it had the character of a usufructuary mortgage originally.

2. Under these circumstances it seems difficult to hold that the possession of trespassers (assuming defendants 2, 3 and 4 to be trespassers) was necessarily adverse to the mortgaged whose right to obtain possession of the mortgaged property is so problematical: See Parthasarathi Naioken v. Lakshmana Naieken(1) and Peria Aiya Ambalam v. Shanmugasundaram(2).

3. We therefore reverse the lower Courts decree based on the view that the possession of defendants 2 to 4 was necessarily adverse to the mortgagee also, and we remand the suit to the Court of first instance for fresh decision.

4. The District Munsif has not framed some of the necessary issues, namely issues, about the genuineness and validity of the mortgage bond, Ex. A, issues as to the title of the plaintiff's mortgagor and as to his possession of the plaint items on the date of the mortgage-deed, Ex. A, and issues as to the title and possession of the persons (Komati Yellappa and Irappa) through whom defendants 2 to 4 claim. These issues must be framed and decided at the retrial.

5. Costs hitherto will abide.

S.N/R.K

6. Appeal allowed.