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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Messrs. K. Bhashyam Ayyangar and M.S Venkatarama Ayyar for the Appellants.
  • Messrs. K.V Krishnaswami Ayyar and T.E Ramabhadrachariar for the Respondents.
Judges
  • Leach, C.J
  • Krishnaswami Ayyangar, J.
Acts
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Messrs. K. Bhashyam Ayyangar and M.S Venkatarama Ayyar for the Appellants.
  • Messrs. K.V Krishnaswami Ayyar and T.E Ramabhadrachariar for the Respondents.
Judges
  • Leach, C.J
  • Krishnaswami Ayyangar, J.
Acts
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

This is an appeal under Clause 15 of the Letters Patent arising from a suit in the City Civil Court by the trustees of the Jumma Masjid, Cutchery Road, Mylapore, Madras, for the redemption of four mortgages affecting two blocks of mortgaged properties. The first block was mortgaged by deed dated 14 February 1873. The second block was mortgaged in parts on 9 February 1850, 28 January 1860 and 19 December 1864.

The City Civil Court held that the trustees had not proved mosque ownership and that the claim as to the first block was barred by the law of limitation; it dismissed the suit with costs. The trustees appealed. Patanjali Sastri, J., on appeal disagreed with the trial Court on ownership and held that the trustees were entitled to redeem the properties comprising the second block but agreed that the claim to the first block was barred by limitation. The mortgagee-successors for the second block (the first to fourth defendants) appealed against the finding that the trustees could redeem the second block. The trustees filed cross-objections challenging the learned Judge's conclusion that limitation barred redemption of the first block.

All mortgages were created by Ghulam Hyder, who acted as superintendent of the mosque and held himself out as owner. A suit in 1874 by Hafiz Sadrool Islaam Khan (on behalf of himself and other members of the Muhammadan community of Mylapore) against Ghulam Hyder ended in a compromise and a decree declaring certain properties (including the properties now in suit) to belong to the mosque. A later suit in 1892 also ended in compromise with a similar declaration; Ghulam Hyder was not a party to that second suit.

Legal Issues Presented

  1. Whether there is admissible and sufficient evidence that the properties in the second block belong to the mosque so as to permit the trustees to redeem the mortgages affecting those properties.
  2. Whether the compromise and decree in the 1874 suit can be used as evidence of title for the trustees (including whether it is governed by the precedent in Secretary of State for India in Council v. Syed Ahmad Badsha).
  3. Whether an admission or statement by the mortgagor (Ghulam Hyder) after the creation of the mortgages can bind the mortgagees or their successors, or otherwise establish the mosque's title.
  4. Whether the deed dated 2 February 1880 (by which Meera Sahib's son and Ali Ibrahim conveyed to Nagayya Chetti) constitutes a transfer within the meaning of Article 134 of the Limitation Act such that the trustees' right to redeem the mortgage of 14 February 1873 is barred by limitation.

Arguments of the Parties

Appellants' Arguments

  • The decree in the 1874 suit is not sufficient to prove the trustees' title to the properties in the second block for the purposes of redemption.
  • No admission made by the mortgagor (Ghulam Hyder) after the mortgages were created can bind the mortgagees or their successors in interest.
  • Mr. Bashyam Aiyangar, appearing for the appellants, argued that Ghulam Hyder's admission that the properties belonged to the mosque must be ignored entirely.

Respondents' / Trustees' Position

  • The respondents rely on the compromise and decree of the 1874 suit (and to some extent the 1892 suit) to establish that the properties fall within an area declared to belong to the mosque and therefore that they have title sufficient to redeem the mortgages affecting the second block.
  • The trustees contend that the 1874 decree can be admitted in evidence (the opinion discusses admission under Section 32(3) of the Evidence Act).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Secretary of State for India in Council v. Syed Ahmad Badsha (1921) 41 M.L.J. 223 : I.L.R. 44 Mad. 778 (F.B.) Holds that a judgment in a suit which does not operate as res judicata can be used as a piece of evidence on the question of title. The court held this precedent inapplicable to the present case because the earlier Full Bench decision concerned a claim to an office in a Muhammadan institution and was not analogous to the present question of title to property.
Doe v. Webber (1834) 1 Ad. & E. 733 : 110 E.R. 1387 States the principle that a person who has parted with an interest in property cannot divest the right of another claiming under him by any subsequent statement he may choose to make. The court noted the principle (adopted in India) but explained it did not defeat the trustees here because the compromise decree did not adversely affect the position of the mortgagee-successors; thus the appellants' submission based on this principle did not succeed.
Thumbusawmy Moodelly v. Hossain Rowthen (1875) L.R. 2 I.A. 241 : I.L.R. 1 Mad. 1 (P.C.) Privy Council held that a contract of mortgage by conditional sale could be enforced according to the letter under the law of India as it then stood and that the English maxim "once a mortgage always a mortgage" had no application in India (as applied historically). The court used this precedent to explain the historical development of the law relating to mortgages by conditional sale in Madras and Bombay and to set out the legal position as at the dates relevant to the 1873 mortgage and the 1880 conveyance.
Ramasami Sastrigal v. Samiappanaykan (1881) I.L.R. 4 Mad. 179 (F.B.) Decided that the English rules of law with regard to mortgages should continue to apply to mortgages by conditional sale in Madras. The court relied on this decision to explain that when the 1873 mortgage was executed the law in Madras regarded the deed as conferring mortgagee's rights (and the condition for absolute ownership was not enforceable), and that this legal position persisted up to the date of the 1880 document.

Court's Reasoning and Analysis

The court divided its analysis between the properties in the second block (ownership/title question) and the first block (limitation and the effect of the 2 February 1880 deed).

On the second block the court set out the evidentiary threshold: before the respondents can redeem the mortgages they must show title by evidence admissible in a court of law and sufficient for proof. Because of lapse of time the respondents relied on the compromise and decree of the 1874 suit.

The learned Judge below (Patanjali Sastri, J.) had relied on the Secretary of State v. Syed Ahmad Badsha decision to treat that decree as sufficient. This Court disagreed with that reliance, explaining that the cited Full Bench decision concerned a different factual context (a claim to an office) and was not analogous.

The Court then addressed the general principle that a statement or admission by a person cannot affect a title previously created by him (as stated in Doe v. Webber). The appellants relied upon that principle to argue Ghulam Hyder's admissions should be ignored. The Court explained that the principle would have to be applied only if the compromise decree adversely affected the position of the appellants; since that was not the case, the principle did not prevent admission of the decree.

The Court considered but found it unnecessary to decide whether Section 18 or Section 19 of the Evidence Act applied. Instead it held the compromise decree of 1874 could be admitted in evidence under Section 32 of the Evidence Act, specifically sub-clause (3) read with the opening words of the section: a statement made by a person who is dead is admissible when the statement is against his pecuniary or proprietary interest. Ghulam Hyder being dead, the decree amounted to a statement by him against his proprietary interest that the properties belonged to the mosque. The Court qualified that while Hyder's statement could not affect the rights of the mortgagee or the mortgagee's successors directly, it amounted to an admission that the mosque was entitled to the equity of redemption. There was no evidence contradicting this, and on that basis the trustees were entitled to succeed in respect of the second block. This disposed of the appellants' appeal on that point.

On the cross-objections concerning the first block, the Court analysed the mortgage deed of 14 February 1873, which contained a clause that unless redeemed within two years the property would become absolute in Meera Sahib and Ali Ibrahim. The mortgagor did not redeem. Meera Sahib died before 2 February 1880, and on that date Meera Sahib's son (as representative) and Ali Ibrahim sold the property to Nagayya Chetti. The vendors treated themselves as absolute owners and the appellants now stand in the shoes of Nagayya Chetti.

The determinative question was whether the deed of 2 February 1880 amounted to a transfer within Article 134 of the Limitation Act — if so, Article 134 applies and the trustees' right to redeem would be time-barred. The Court reviewed historical authorities: the Privy Council decision in Thumbusawmy Moodelly established that contractual mortgaging by conditional sale could be enforced under the then Indian law; the Ramasami Sastrigal decision indicated that English rules with regard to mortgages were to be treated as continuing in Madras. From these authorities the Court concluded that when the 1873 mortgage was executed, Madras law treated the deed as conferring mortgagee rights (i.e., the "condition" rendering absolute ownership on default could not be enforced), and that position persisted to the 1880 document date.

The Court noted it was immaterial whether Meera Sahib's son and Ali Ibrahim in fact had full title to convey to Nagayya Chetti because (as conceded by Mr. K. V. Krishnaswami Aiyar) even if they lacked full title but purported to convey an absolute title, the transaction would constitute a transfer within the meaning of Article 134. Upon examining the 2 February 1880 document the Court agreed with the learned Judge below that it should be construed as an instrument of sale (a transfer) and not merely an assignment of the mortgagee's interest. Consequently, Article 134 applied and the trustees' right to redeem the first block was barred by limitation. The Court therefore dismissed the cross-objections.

Holding and Implications

Core Ruling: The trustees are entitled to redeem the mortgages affecting the properties in the second block; the trustees' claim to redeem the mortgage of the first block (mortgage dated 14 February 1873) is barred by limitation and the cross-objections contesting that finding fail.

Direct consequences for the parties:

  • The trustees succeed in respect of the second block and are entitled to redeem those mortgages on the basis that the 1874 compromise decree (admissible under Section 32(3) of the Evidence Act) establishes the mosque's title to the equity of redemption and there is no contradictory evidence.
  • The trustees' right to redeem the mortgage of the first block is defeated by limitation because the conveyance of 2 February 1880 was treated as a transfer within Article 134 of the Limitation Act; the cross-objections are dismissed.
  • Costs: the appellants are ordered to pay the costs of the appeal to the trustees of the mosque; the trustees are ordered to pay the costs of the cross-objections to the appellants out of mosque funds.

The opinion does not purport to establish a new general precedent beyond applying existing authorities and statutory provisions to the facts; it confines its holdings to the facts and legal points considered in the case.

Show full summary ...

    P. Venkatasubbiah Chetty And Others v. The Jumma Mosque, Kutcheri Road, Mylapore, Madras By Its Muthavalli C. Khader Mohideen Sahib And Others

    1. This is an appeal under Clause 15 of the Letters Patent. The suit out of which it arises was filed in the City Civil Court by the trustees of the Jumma Masjid in Cutchery Road, Mylapore, Madras for the redemption of four mortgages. The mortgaged properties consisted of two blocks. The first block was mortgaged by a deed executed on the 14th February, 1873. A part of the second block was mortgaged on the 9th February, 1850, another part on the 28th January, 1860, and the remainder of the block on the 19th December, 1864, The City Civil Court Judge held that the trustees had not proved that the properties belonged to the mosque. He also held that the suit was barred by the law of limitation in so far as it concerned the mortgage of the properties in the first block. The result was that the suit was dismissed with costs. The trustees appealed to this Court and their appeal was heard by Patanjali Sastri, J., who disagreed with the trial Court on the question of ownership and held that the trustees were entitled to redeem the properties comprised in the second block. With regard to the mortgage of the first block the learned Judge agreed with the trial Court that the law of limitation barred the trustees' claim. The first, second, third and fourth defendants, who are the successors in interest of the mortgagee of the properties comprised in the second block, have appealed against the finding of the learned Judge that the trustees are entitled to redeem. The trustees have filed cross-objections, challenging the decision of the learned Judge that the law of limitation has destroyed their right to redeem the mortgage of the first block.

    2. All the mortgages were created by one Ghulam Hyder, who was the superintendent of the mosque at that time. In mortgaging the properties he held himself out to be the owner. In 1874 a suit was filed in this Court by one Hafiz Sadrool Islaam Khan on behalf of himself and other members of the Muhammadan community of Mylapore against Ghulam Hyder for a decree-removing him from the office of superintendent. It was alleged that he had wrongfully alienated properties belonging to the trust. This suit was compromised and the decree which was passed in accordance with the terms of the compromise declared that certain properties belonged to the mosque. The area of these properties was defined and it is admitted that within the area fall the properties now in suit. Another suit was filed in this Court in the year 1892, which also ended in a compromise and a further declaration that the properties with which the suit is concerned belonged to the mosque, but Ghulam Hyder was not a party to the second suit. His son was a party, but the suit as against him was withdrawn.

    3. The question which the Court is called upon to decide with regard to the properties in the second block is whether there is evidence that the properties belong to the mosque, that is evidence which is admissible in a Court of law and sufficient for proof. Before the respondents can be allowed to redeem the mortgages they must, of course, show title. Owing to the lapse of time the respondents are not in a position to trace the history of the properties and they are driven to relying on the compromise and the decree which followed it in the suit filed in 1874. Patanjali Sastri, J., held that the decree passed in that suit was in itself sufficient for the respondents' purpose. He relied on the decision of this Court in The Secretary of State for India in Council v. Syed Ahmad Badsha(1921) 41 M.L.J. 223 : I.L.R. 44 Mad. 778 (F.B.). The appellants contend that the decree is not sufficient for the purpose of proving the respondents' title. They maintain that no admission made by the mortgagor after the mortgages had been created can bind them.

    4. We are unable to agree with the learned Judge that The Secretary of State for India in Council v. Syed Ahmad Badsha (1921) 41 M.L.J. 223 : I.L.R. 44 Mad. 778 (F.B.), has application here. In that case a Full Bench of this Court held that a judgment in a suit which does not operate as res judicata can be used as a piece of evidence on the question of title. The suit was concerned with a claim to an office in a Muhammadan institution, and the question was in no way analogous to the question now under discussion.

    5. It is well settled that a statement or an admission made by a person cannot affect a title previously created by him. To use the words of Lord Denman, C. J., in Doe v. Webber (1834) 1 Ad. & E. 733 : 110 E.R. 1387, a person who has parted with his interest in property cannot divest the right of another claiming under him by any statement which he may choose to make. This principle has been accepted in India and there is nothing in the indian evidence act which throws any doubt on the power of the Court to apply it. Basing his argument on this principle Mr. Bashyam Aiyangar, on behalf of the appellants, has contended that Ghulam Hyder's admission that the properties in suit belonged to the mosque must be ignored entirely. It would have to be ignored if the compromise decree in the suit of 1874 adversely affected the position of his clients, but that is not the case and the principle therefore does not apply.

    6. There has been a great deal of discussion on the question whether the decree in the suit of 1874 amounts to an admission within the meaning of Section 18 or Section 19 of the Evidence Act, but it is unnecessary to decide whether either of these sections has any application. It may be taken for the purposes of this case that neither section applies, but this does not mean that the decree in the suit of 1874 cannot be admitted in evidence. We are of the opinion that the decree can be admitted in evidence under Section 32. Once it is admitted it is admitted for all purposes and we consider that it establishes the title of the mosque to the properties in suit. Sub-clause (3) of Section 32 read with the opening words of the section is to the effect that a statement made by a person who is dead is admissible in evidence when the statement is against his pecuniary or proprietary interest. Ghulam Hyder is dead and the decree is in effect a statement by him that these properties belong to the mosque, a statement which was against his proprietary interest. His statement cannot, however, affect the interests of the mortgagee or of the mortgagee's successors in interest, and therefore so far as they were concerned the decree must be taken to be merely an admission by Ghulam Hyder that the mosque was entitled to the equity of redemption in the property. But this is sufficient to entitle the respondents to succeed, as Ghulam Hyder knew the true position and there is no evidence in contradiction. This finding disposes of the appellants' case.

    7. Turning now to the cross-objections the position is this. The mortgage of the 14th February, 1873, provided that unless it was redeemed within a period of two years the property should become the absolute property of the mortgagees, Meera Sahib and Ali Ibrahim. The mortgagor failed to redeem. Meera Sahib died before the 2nd February, 1880. On that date the son of Meera Sahib, who represented his deceased father, and Ali Ibrahim sold the property to one Nagayya Chetti. As the property had not been redeemed within the period allowed by the deed for redemption the vendors regarded themselves as the absolute owners. The appellants now stand in the shoes of Nagayya Chetti. The question is whether the deed of the 2nd February, 1880, amounts to a transfer of the property within the purview of Article 134 of the Limitation Act. If it does amount to a sale of the whole interest in the property, not merely a transfer of the mortgagees' interest, admittedly the article has application, and this is what Patanjali Sastri, J., has found.

    8. In 1875 in Thumbusawmy Moodelly v. Hossain Rowthen (1875) L.R. 2 I.A. 241 : I.L.R. 1 Mad. 1 (P.C.), the Privy Council held that a contract of mortgage by conditional sale could be enforced according to the letter under the law of India as it then stood and that the Madras and Bombay Courts in applying English rules had erred. This meant that the English maxim, once a mortgage always a mortgage, had no application in India. From the year 1858 the Courts in the Madras Presidency and from the year 1864 the Courts in the Bombay Presidency had applied the English law relating to mortgages, and the Privy Council recognized that what had been done could not be undone. It did not, however, definitely decide what courge should be adopted in future and in Ramasami Sastrigal v. Samiappanaykan (1881) I.L.R. 4 Mad. 179 (F.B.), this Court decided that the English rules of law with regard to mortgages should continue to apply to mortgages by conditional sale. Therefore it must be taken that when the mortgage of the 14th February, 1873, was executed the law in Madras regarded the deed as merely conferring a mortgagee's rights on Meera Sahib and Ali Ibrahim, and the condition that the property should become theirs unless the mortgage was redeemed within two years could not be enforced. That was also the position when the document of the 2nd February, 1880, was executed.

    9. The question whether the son of Meera Sahib and Ali Ibrahim in fact conveyed a full title to Nagayya Chetti is not material. It has rightly been conceded by Mr. K. V. Krishnaswami Aiyar that even if the vendors were not in possession of a full title but purported to convey an absolute title to Nagayya Chetti the transaction would constitute a transfer within the meaning of Art, 134. We have examined the document with care and we agree that the learned Judge has rightly construed it as an instrument of sale and not as an assignment of the mortgagees' interest. This being the case the cross-objections also fail and must be dismissed.

    10. The appellants will pay the costs of the appeal to the trustees of the mosque, and the trustees of the mosque will pay to the appellants out of the mosque funds the costs of the cross-objections.

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    Comments

    P. Venkatasubbiah Ch... v. The Jumma Mosque, Ku...
    (Nov 20, 1940)