Santokhi Misser And Another v. Siro Jha And Others

1. This was a suit for redemption of a usufructuary mortgage. The mortgagees claimed that many years ago they had entered into a contract with the mortgagors, by which on payment of an additional sum of Rs. 25 the mortgaged property was sold to them, and their names were substituted for the names of the mortgagors in the sherista of the Darbhanga estate. The Sub-ordinate Judge has found that the sale actually took place as described by the mortgagees; but the considers that as the mortgagees were in possession at the time when the oral sale took place, they cannot claim that transfer was made by delivery of the property in view of the decision in Sibendrapada Banerjee v. Secy. of State (1). He held however that from the date of the sale the former mortgagees held as purchasers adversely to their vendors, and that as they had so held more than 12 years before the date of suit, the plaintiffs' claim was barred by limitation.

2. Mr. S.N Sahay on behalf of the plaintiff-appellants, argues that the view of the Sub-ordinate Judge ought not to be supported, on the ground that during the pendency of a mortgage a mortgagee cannot acquire against his mortgagor any title by adverse possession which would bar a claim to redeem. He cites the decision in Bakha Singh v. Ram Narain Singh (2), in support of this view. In that case it was held that so long as the right of mortgagors to redeem a mortgage existed, it was not open to the mortgagees to set up an adverse title, and in so doing to claim that their possession was protected by the law of limitation. In the present case the learned Sub-ordinate Judge has found that the contract by which the mortgage came to an end, and the former mortgagee began to hold under a new title, was a valid contract actually entered into by the parties, although the purchasers could not claim the benefit of the provisions of Section 54 of the Transfer of Property Act, because since they already had possession of the property, there was no actual delivery of possession accompanying the sale. But the relationship of mortgagor and mortgagee came to an end when the contract to sell was completed, and the right to redeem then came to an end; so that it cannot be said that the mortgagees have been setting up adverse title while the right to redeem still existed. In Kandasami Pillai v. Chinnabba (3), the facts were very similar to the facts of the present case. The matter was disposed of precisely in the same manner as the learned Sub-ordinate Judge has disposed of the present cane; and it cannot be said that his method of disposing of it is illegal.

3. Indeed on the learned Sub-ordinate Judge's finding of fact it is clear that the has done justice between the parties. At the time of the sale, the mortgagor, Balakram Misser, obtained an entry of the purcharer's name in the sherista of the Darbhanga Raj in place of his own for the area transferred by the sale. Evidence to this effect was given by one of the defendants' witnesses, Kali Singh, whose evidence was expressly accepted by the learned Sub-ordinate Judge; and it appears to be clear from the manner in which the Sub-ordinate Judge has discussed it that he accepts this witness's statement that Balakram Misser procured this mutation of names in the sherista of the estate. The purchaser was already in possession of the property, so that nothing further was needed to place them in actual possession as raiyats beyond the mutation of names in the landlord's sherista; and I consider that this obtaining of the mutation of the names by Balakram Misser should be treated as an act of delivery of the property which would bring the transfer within the provisions of Section 54 of the Transfer of Property Act. In Sonai Chutia v. Sonaram Chutia (4) at the time of the sale to the mortgagee in possession there was formal pointing out of boundaries and an endorsement on the back of the mortgage bond; and it was held that everything that could be done to deliver possession to give effect to the sale had been done and all the requirements of Section 54 of the Transfer of Property Act, had been satisfied. In the present case I consider that the same view should be taken of the act of the vendor in obtaining mutation of the purchaser's name in the landlord's sherista.

4. Apart from these reasons for maintaining the decree as it stands, there is the fact that this Court has always declined to allow the process of the Court to be abused at the instance of a dishonest vendor, by ejecting from possession a purchaser who has paid the purchase money and is in possession of the property, merely because he possesses no written instrument or because that instrument has not been registered.

5. The principle has now been formally recognized by the Legislature in Section 53(a) of the Transfer of Property Act; but before the enactment of that section, this Court has refused, as I have said, to eject a purchaser at the instance of the vendor in these circumstances.

6. This appeal must be dismissed with costs.

G.B

7. Appeal dismissed.