LexPADMA VITHOBA CHAKKAYYA versus MOHD. MULTAN!
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
3 S.C.R.
SUPREME COURT REPORTS
229
In the result the appeals are allowed, with
costs throughout. one set in Civil Appeals Nos. 389
and 390 of 1960 and one in Appeals Nos. 391 and
392 of 1960, and one hearing fee.
Appeal allowed.
PADMA VITHOBA CHAKKAYYA
(K. C. DAS
T. L.
v.
MOHD. MULTAN!
GUPTA., J. R. MunnoLKAR and
VENKATA.RAMA AIYA.R, JJ.)
Adverse Possession-V svfructuary mortgagee obtaining
invalid sale with consent of mortgagor-Mortgagor a minor-
Na ure of possession of mortgagee if altered.
In I 961 R executed a usufructuary mortgage of the suit
lands in favour of M. Later, in 1923 he executed a sale deed
of the same lands in favour of Rajanna, uncle of the appel·
!ant. The appellant and Rajanna formed a joint Hindu
family.
As there was difficulty in obtaining possession by
Rajanna, he R and M entered into an arrangement under
which the sale deed was cancelled by making endorsements
on the back of it and the lands were sold by R ti} M. Rajanna
died in 1930 as a minor, and in 19H the appellant brought a
suit aga.inst M for possession of the lands ori the ground that
the cancellation of sale deed of 1923 was ineffective as it was
not registered and that accordingly the sale deed in favour of
M passed no title to him. M pleaded adverse possession on
account of the invalid sale in his favour. The suit for posses-
sion was dismissed on the ground that the appellant had filed
the suit more than three years after attaining majority.
Held, that though the suit for possession was time barred
the appellant could maintain a suit for redemption if M had
not prescribed title by adverse possession. M who had entered
into possession as a mortgagee could acquire title by prescrip-
tion if there was a change in the character of his possession
-I
under an agreement with the owner. The endorsement of
cancellation on the sale 'deed taken along with the sale deed
1962
Wao1ri1
(,
'
••
Raymon· ti: Co.,.
(India) Poi. I.Id.
A.i)ar J.
.196t
M<1y4.
: .
1962
Pairna Vilhoba
Chakt'!'ya
v.
Mo/!&. Multani
230
SUPREME COURT REPORTS [1963]
in favour of M were admissible to show the character of
posses::iion of M.
This arrangement would clearly show that
the possession of .M was adverse provided Rajanna was not
a minor and was capable of giving his consent.
Though, in
certain circumstances there
could be adverse possession
against a minor, possession
lawful at the
inception could
not become adverse under an arrangement with a minor.
A minor was in law, incapable of givii1g consent, and there
being no consent, there could be no change in the character
of possession which could only be by consent and not by
unilateral action.
·
Kanda Sami Pillai v. Chinnabba (1920) l.L.R. 44 Mad.
253 and Varatha Pillai v. Jee•arat/inammal (1918) LR. 46
l.A. 285. relied on.
Sitharama Raju v. Subba Raju, (1921) I.L.R,. 45 Mad,
361, referred to.
CrvIL APPELLATE JurusDICTION: Civil Appeal
No. 620 of Hl60.
Appeal by special leave from the judizement
and decree dated February 11, 1954, of the former
Hvderabad High Court in Second Appeal Suit No.
476/4 of 1954 Fasli.
.
G()]lal Singh and R. 8. Narula,
for the
appellant.
A. Ranganatham Chetty,
A, V. Rangam,
A, Vedavali and P. C. Agarwnla, for respondent
No. 1.
1962. May 4. The Judgment of the Court was
-<
delivered by
VENKATARAll!IA AIYAR, J.-This is an appeal
by special leave against the judgment of the High
Court of Hyderabad whereby it affirmed the judg-
ment of the Court of the Additional District Judge
of Adilabad dismissing the suit of the appellant.
The facts are that there was a joint family consist-
ing of one Chakkayya and his younger brother
Rajanna.
Chakkayya died in year 1923 leaving
8 S.C.R.
SUPREME COURT REPORTS
.231
behind the appellant his son who it is said was at
that time a minor a few months old. On December
21, 192:3, Rama Rao second defendant, sold the
lands which are the subject-matter of the suit to
Rajanna.
It appears that as there was
some
difficulty in Rajanna getting possession of the pro-
perties which were stated to have been usufruct-
uarily mortgaged to the first defendant, the
transaction of sale was cancelled and th"e same was
endorsed on the sale deed.
Thereafter the second
defendant executed a fresh sale deed in favour of
the
first
defendant and
the
latter
has
ever
since
continued
in possess{on.
The
iJ-ppellant
filed the present
suit on
February
14, Hl4:J,. fExcerpt shown. Read the full judgment & AI analysis in Lexace.