LexRUKMANI AMMAL AND ANR. versus JAGDEESA GOUNDER
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RUKMANI AMMAL AND ANR. A v. JAGDEESA GOUNDER NOVEMBER 9, 2005 [ARIJIT PASAYAT AND C.K. THAKKER, JJ.] B Limitation Act, 1963-Artic/e 63-Possession of mortgage property by mortgagee-When becomes adverse against mortgagor-Held: On sale of mortgage property in favour of mortgagee, his/her status as mortgagee comes C to an end and upon purchase, claims property as absolute owner-Possession becomes adverse to the mortgagor-original owner. Code of Civil Proceduri:., 1908-0rder 34-Sale of part of property already mortgaged by mortgagor, to purchaser-Suit for declaration of title and possession of property by purchaser against mortgagee 12 years later- D Maintainability of-Held: Suit for redemption of mortgage should have been filed and suit for declaration of title and possession is not maintainable - Mortgagee was in possession of the property, and also purchaser was claiming through mortgagor-Moreover, suit being filed after 12 years was time barred- Limitation Act, 1963-Article 63. Order 1, Rule 9-Non-impleadment of subsequent purchaser in money suit-Sale of property in execution of money decree and plaintiff becoming owner of property-Effect of-Held: Non-joinder is of no consequence since it was an independent transaction, he was neither necessary nor proper party and as such sale would bind him. Tamil Nadu Debt Relief Act, 1979-Mortgaged property sold in favour E F of mortgagee after four years-Plea of mortgagor and subsequent purchaser that mortgagee in possession of property for more than ten years as usufructuary mortgagee, as such mqrtgage statutorily discharged-Held: After auction sale, mortgagee became owner of property-Hence, provisions of the G Act not applicable and benefit cannot be claimed 'A', original owner of the property, mortgaged the property to defendant No. 1 in 1962 and since then defendant No. I was in possession · of the property as usufructuary mortgagee. 'A' took another loan from IM H 106 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R. A defendant no 1 on other pro-note. In 1964 'A' sold part of the property to respondent-plaintiff and the sale deed recited the factum of mortgage. by 'A' to defendant no. 1. Since 'A' did not repay the amount under the separate pro-note, defendant no 1 filed money suit against 'A' and a deeree was passed against 'A'. In execution proceedings, the suit property was B sold in public a•1ction in 1966 and defendant no. 1-mortgagee purchased the same with the permission of the Court, sale certificate was issued and she took possession of the property. Subsequently, defendant no 1 sold the property to defendant No. 2. In 1980, respondent - plaintiff filed a suit for declaration of title and C possession of part of the property against defendant No. 1. Respondent - plaintiff alleged that the respondent - plaintiff had. purchased part of the suit property and had become owner of that' portion; that defendant no. 1 was in possession of the property only as mortgagee of the property and continued to remain the same even after auction sale by court; that defendant no. 1 being in possession for more than ten years as mortgagee, D mortgage was statutorily discharged under the Tamil Nadu Debt Relief Act, 1979 and as such was bound to deliver possession of the property. Defendant no. 1 contended that the suit was not maintainable since respondent - plaintiff ought to have instituted a suit for redemption of mortgage and not for declaration of title; that after the auction sale an<! E confirmation thereof by Court, defen~ant no. 1 became owner of the property as she acquired title by adverse possession; that the debtor was not entitled to any benefit under the 1979 Act; and that the suit was barred by limitation. Trial Court passed decree in favour of respondent - plaintiff for title F and possession of the property. Defendant no. 1 then filed an appeal. Lower Appellate Court allowed the appeal and set aside the decree passed by the trial court holding that after the auction sale by the Court and its confirmation, defendant No. 1 no more continued to be mortgagee in possession and her title was adverse to the mortgagor; that suit for redemption of mortgage should have been filed and not for declaration G of title and possession of mortgage-property; that the suit was barred by limitation; and that defendant no. 1 filed money suit against 'A' and even though plaintiff was not impleaded, decree passed and sale of p
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