1928 (6) TMI 4 - HC - Indian Laws

Summary

Issues Involved:

1. Admissibility of the document dated 28th February 1901 for showing a change in the character of the possession of the mortgagee.
2. Whether the possession of the mortgagee became adverse after 1901 and if the claim is barred by limitation.

Detailed Analysis:

Issue 1: Admissibility of the Document

(a) Nature of Property - Tangible or Intangible:
The court discussed whether Damodar's interest in the mortgaged property was 'tangible immovable property' or 'intangible property' under Section 54, T.P. Act. It was concluded that the mortgagor remains the owner of the property even after executing a mortgage, whether simple or usufructuary. The transfer of the property should be considered as the transfer of tangible immovable property.

(b) Validity of Transfer by Unregistered Document:
The court held that the transfer of tangible immovable property by an unregistered document is not valid. The property was already in the possession of the proposed transferee, and there could be no delivery of the property without first asking the transferee to vacate it. Thus, the document executed by Damodar did not effect a change in title, and no title passed to Ragha Mal.

(c) Inadmissibility in Evidence under Section 49, Registration Act:
The court determined that regardless of whether the property was tangible or intangible, the transfer could only be made by a registered document. Since the document was not registered, it was concluded that the document was inadmissible in evidence under Section 49, Registration Act.

Section 4, T.P. Act and Section 49, Registration Act:
The court discussed the relationship between Section 4, T.P. Act, and Section 49, Registration Act. It was concluded that Section 49, Registration Act, does not apply to the document of 28th February 1901. Therefore, the document is admissible in evidence to show the intention of the parties and the change in the character of possession.

Issue 2: Adverse Possession and Limitation

The court examined whether the possession of Ragha Mal became adverse to Damodar after the execution of the sale-deed in 1901. It was determined that Ragha Mal's possession, which was initially permissive and derivative as a mortgagee, became adverse from the date of the execution of the document. The intention of the parties was that Ragha Mal should become the owner of the property, and Damodar should cease to have any interest in it.

Adverse Possession Despite Permissive Start:
The court held that even though Damodar was not entitled to possession on the date of the sale-deed, the agreement between the parties attempted to put an end to the mortgage. If the mortgagee's estate could come to an end, the mortgagor would be entitled to possession. Since Damodar did not enter into possession, Ragha Mal's possession became adverse to Damodar from the date of the execution of the sale-deed. After 12 years, neither Damodar nor his successor-in-title could claim the property.

Conclusion:
The court answered both questions in the affirmative. The document of 28th February 1901 is admissible in evidence to show the change in the character of possession, and the possession of the mortgagee became adverse to the mortgagor from the date of the execution of the document, thus barring the plaintiffs' suit by limitation.