# Pairna Vilhoba Chakt'!'ya v. Mo/!&. Multani

- **Citation:** [1963] 3 S.C.R. 229
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Civil Appeals Nos. 389 and 390 of 1960
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pairna-vilhoba-chakt-ya-v-mo-multani-2593
- **Pages:** 10

## Headnote

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 minorNa 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 possession 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 prescription 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 judgment 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 consisting 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 properties which were stated to h

## Text

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 minorNa 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 possession 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 prescription 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 judgment 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 consisting 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 properties which were stated to have been usufructuarily 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,. for recovery of possession of these properties from the first defendant on allegation that.
the first
defendant wa.s in management of the
properties belonging to the joint family of Chakkayya and Rajanna and himself, that the sale deed
in favour of Rajanna dated December 21, 1923,
vested title to the suit properties in the joint
family, that the first defendant had entered on the
management of these I roperties also as manager
on behalf of the joint family, that Hajanna died in
1U30 as a minor, that the first defendant was discharged from the management in 1933, that he had
not surrendered possessiou of the suit properties to
t.he family, but was setting up a title to them in
himself on the basis of a sale deed executed by the
second defendant subsequent to the sale deed dated
December 21,
192;~ in favour of Rajanna, but that
the said sale deed could confer no title on him, as
the second defendant had sold the lands previously to Rajanna, and had no title which he could
thereafter convey. It was further alleged that the
plaintiff became a major some time in June 1940
and that the suit for possession was within thn e
years of his attaining majority a.nd not barred by
-limitation. The first defondant contested the suit.
:e;e pleaded that he was merdy a jawa.n or servant
J961
Parlma JI ilh,b"
Chakkoy_i• ·
v.
.
Mohd. Mullani
196t
Padma Vithoba
Ohakkayya
••
Ha!rd. Mu.ltani
-.
Aiyar J.
.
232
SUPREME COURT REPORTS [1963J
in the service of the family, that he ~as not in
management of the joint family properties, that the
suit lands had been uoufructu>irily mortgaged to him
in 1916 for Rs. 800 f · long before they were sold to
Rajano<i. in 1923, that the sale in favour of Rajanna
had been cancelled with his consent he having been
paid back the ~onsideration, that it was thereafter
that the second defendant sold the properties to
him, and that he had therefore acquired a good
title to them, and that further as he had been in
possession of the properties thereafter for over the
statutory period in assertion of a title as owner, he
had acquired title to them by prescription and that
the suit was. barred by limitation. He denied that
Rajanna was a minor at the relevant dates as stated
in the plain.
On these pleadings the District
Munsiff framed the following issues : -
Fl Whether according to the
suit
(plaint), the suit lands have been sold by
defendant No. 2 in favour of Padma Rajanna
through registered
sale deed dated 17th
Bahman 1:>34-F (corresponding to 21st Dec.
1923)?
(2) Whether as stated by the plaintiff
in his suit, the family of the plaintiff and
. Padma. Rajanna waH joint ? And whether on
account of the death of the said Rajauna, the
plaintiff is entitled to the suit lands ?
(3) Whether the defendltnt No. 2 has
executed the sale deed dated 3 Farwardi 1334-F
(corresponding to 4th February
1925-AD)
and what is its legal effect on the sale deed
dated 17th Bahman 1334-F. (corre'sponding
to 21st December 1923) ?
(4)
Whether at the time of the execu:
tion of the sale deed dated 3rd Farward1
1334-F (21. 12. 1923) the.plaintiff was minor?
And whether' this suit is within limitation ?
1
'
a s.c.R.
SUPREME COURT REPORTS
233
(5) To what relief are the pa1ties entitled to?
The learned District Munsiff, Nirmal, who
tried the suit held that as the endorsement of thti
cancellation of the sale deed in favour of Rajanna
was unregistered, no title pasr,ed to the second
defendant by reason of that endorsement and that
accordingly the sale by him in favour of the first
defendant conferred no title on him and further
that the suit had been instituted within three years
of the plaintiff's attaining majority and that it was
in time and so he decreed the suit.
Against this
Judgment and decree there was an appeal by the
respondents to the Additional District Court of
Adilabad, which held that the plaintiff had not est·
ablished that he had attained majority with.in three
years of the suit and on the finding the ~ppeal was
allowed. The appellant took the matter in second
appeal to the High Court of Hyderabad which
agreeing with the District Judge, held that the
suit was instituted more than three years after the
plaintiff had attained majority and dismissed the
appeal. It is against this
Judgment that the
present appeal by special leave has been filed.
The first contention that is urged on behalf of
the appellant is that the finding that the plaintiff had
attained majority more than three years prior to
the suit was erroneous. But there a.re concurrent
findings on what is a question of fact, and we see
no sufficient reason to differ from them.
The contention strongly urged by Mr. Gopal
Singh in support of the appeal is that the first
defendant had been put in
management of all
the properties belonging to the plaintiff's family
and that having entered into the possession of the
suit lands as mana.ger on behalf of the family, it
was not open to him to set up a. title by adverse
pcssession, unless he first surrendered possession of
1962
Pad"la Vil hob a
Ghakkayya,
v.
Mohd. Mu/tani
A!Jlar J,
1962
~-.
Podma Vithob~
Ch11k.ka.J.-,a
.
v •.
Mohd; Alultuni
234
SUPREME COURT REPORTS [1963)
the properties.
On this point the learned Judges
of the High Court held that there was no satisfactory proof-that the. first defendant had been in
management of the properties as agent of the
plaintiff and his family.
The contention of the
appellant is that there is a large body of evidence
in support of the allegations in the plaint that the
fint defendant \\as not a mere servant but mana·
get· of the properties, that he had not. gone
into the box and denied them and that under
the circumstances it must be held that he entered
into possession of the properties as manager and it
was not competent for him to set up a claim by
adverse possession.
The respondent argms that he was merely a
jawan in the service of the family of appellant and
that he had nothing to do with the management of
the properties and that as there was no evidence
worth the name in support of the allegations in the
·plaint, there was no need for him to enter into the
box and give evidence that he was not in manage·
ment of the lands. If the fact of this appeal turned
on a determination of this question, we should, on
the materials before us, feel considerable difficulty
. in agreeing with the decision of the learned Judges,
The failure of the first defendant to go into the box
would have been sufficient to shift the burden of
proving that he was not the manager on to him,
Vide Murugesam Pillai v. ManickavasakaPandara(l)
and Guruswami Nadar v. Gopalaswami Odayar (2). ·
.But then it is pointed out by the respondent
that the suit lands had come into his possession
under a usufructuary mortagage executed by the
second defendant in 1916, that there was no allega·
tion that this mortagage was obtained by him while
he was the manager of the family properties or on
(I) [1917) L.R. 441.A. 98.
(2) [1919] !.L.R. 42 Mad. 629.
3 S.C.R.
SUPREME COURT REPORTS
23~
behalf of the family, and that when once his possession has been traced to the usufructuary m Jrtg1ge
of 1916, th3re could b3 no que'ltion thereafter of
his havin<1 entered into possession of the properties
as manag~r on behalf of the family. Before us the
appellant did not dispute the truth of the usufructuary mortgage in favour of the first respondent nor
did he contend that in taking that mortgage the first
defendant acted on behalf of the family. Such a
contention would be· untenable as at that time
Chakkayya the father of the plaintiff and the
manager of the joint family was alive. That being
so the question whether the first defendant is
precluded as manager from
acquiring title by
adverse . possession does not arise for decision
because he entered into possession of the properties
in his own right as usufructuary mortgagee,
On the finding reached above that the first
defendant entered into possession of the properties
e.s usufructuaty mortgagee in 1916, the question is
what are the rights of the appellant .. On the basis
of the sale deed by the second defendant in favour
of Rajanna he would be entitled to redeem the
mortgage. But the present suit is not one for
redemption of the mortgage but for ejectment, and
that by itself would be & ground for dismissal of
the suit. But in view of the fact that this litigation
had long been pending, we consider it desirable to
decide the rights of the parties on the footing that
it is a suit to redeem the usufructuary mortgage,
without driving the parties to a separate action.
We have now to consider the defence of the first
defendant to the suit, treating it as one for redemption. Now the contention of Mr. Ranganathan
Chatty for the respondent is that he had been
in possession of the properties as owner ever since
1923, when the second defendant sold them to him,
that he had thereby acquired a prescriptive title
to them, and that the right of the appellant to
Patlm 1 V ilhiJ'14
<.'hakkaJYil.
v.
Mohd. Mulliini
1962 -
Padmtl Vithoba,
Ckalfkayy~
v.
Mohd. Multani
236
SUPREME COURT REPORTS [1963]
redeem was thereby extinguished. It is not disputed
that when a person gets into possessiou of proper-J
ties as mortgagee, he cannot by any unilateral act
declaration of his prescribe for a title by ad verse
possession against the mortgagor, because in law
his possession is that of the mortgagor. But what
is contended is that if the mortgagor and mortgagee
subsequently enter into a transaJtion under which
the mortgagee ii to hold the properties thereafter
not as a mortgagee but as owner that would be
sufficient to start ad verse possession against the,
mortgagor if the transaction is for any reason
inoperative under the law. This contention, in our
opinion, is well founded. Though there was at one
time a body of judicial opinion that when a person
enters into possession as a mortgagee he cannot
under any circumstances acquire a title by prescrip·
tion against the owner, the Jaw is now fairly well
settled that he can do so where there is a change in
the character of his possession under an agreement
with the owner, vide Kanda Sami Pillai v.
Ghinnabba (1). Now the question is was there such
an arrangement? The contention of the respondent
is that the agreement between Rajanna and the two
defendants under which Rajanna received back the
sale
consideration and made an endorsement
cancelling the R!lle followed, as part of the transaction, by the sale of the properties by the second
defendant to the first defendant would be sufficient
to start ad verse possession.
~
The endorsement of cancellation on the back
y
of the sale
deed in favour of Rajanna dated
December 21, 1923, has been held, as already stated,
·to be inadmissible in evidence as it is not registered. The result of it is only that there was no
retransfer of title by Rajanna to the second defendant, and the family would in consequence continue .
to be the owner, und that is why the appellant is Y
(!) (1920) I.L.R. 44. Mad. 253.
·•
~ S.C.R.
SUPREME COURT REPORTS
237
entitled to redeem. But the endorsement, taken
along with the sale deed by the second defendant
in favour of the first defendant is admissible in
evidence to show the character of possession of the
latter. Vide Varatha Pillai v. Jeevanathammal (1).
And that was clearly adverse to the owners. The
answer of the appellant to this contention is that
Raja.nna himself was a minor at
the time
when this arrangement is stated to have taken place
and that in consequence no title by adverse
possession can be founded on it. We agree that if
Rajanna was a minor when he entered into this
arrangement that would not operate to alter the
character of possession of the first defendant as
mortgagee. The respondent contended that there
could be adverse
poss~ssion against a minor in
certain circumstances, !ind relied on the decision in
Sitharama Raju v. Subba Raju(2 ), in support of this
position. That is not questioned, but the point for
decision is whether possession lawful at the
inception can become adverse under an arrangement
entered into by a minor. Now a minor is in law
incapable of giving consent, and there being no
consent, ·there could be no change in the character
of possession, which can only be by consent, and
not by any unilateral act. Therefore the crucial
point for determination is whether at the time of
the cancellation of the sale deed dated December 21,
1923, Rajanna was minor or major. According to
the respondent he was a major and there is evidence
also on record in support of this contention.
According to the appellant Raja.nna was a minor at
that time and he died a minor in 1930. On this
disputed question of fa.ct there has been neither an
issue framed nor evidence adduced.
Under the cir·
cumstances we think it desirable that the matter
should be remanded to the Court of District Munsiff
for a. fresh inquiry on this questinn. The plaintiff should
(I) [1918] L.R, 46 I.A. 285.
f2) ( 1921) J.L.R. 45 Mad. 361.
1981
Padma Vithoba
Chakka'!;a
v.
Modh. Multan>
/
•
i
,
1962
Padma ViJhobn
Chakkayya
v.
Mohd. MulJani
A(iiar J.
238
SUPREME COURT REPORTS [1963]
dn remand be required to suitably aniend the plaint ..
so as to convert the suit into one fur redemption of
the usufructuary mortgage of the year 1916. The
first defendant will then file his written statement
in answer thereto. An issue will be framed whether
Rajanna wa~ a major at the time when the sale deed
was cancelk ·;. If it is held that he was a major
then the pm;, ••sion of the first defendant thereafter
would be adv-;rse and on the findings given by the
Courts below the suit will ·have to be dismissed as
barred by limitation. But if it is held that Rajanna
was then a minor, then there would be no question
of adverse possession and the plaintiff wcmld be the
entitled to redeem the mortgage. The decree of the
lower court is accordingly set aside and the matter
remanded to the Court of the Distriot Munsi:ff
for fresh disposal as stated above. Costs incurred
throughout in all the Courts will abide the result.
Case remanded.
"I
f