JUDGMENT
Sadasiva Aiyar, J.
1. These two second appeals have arisen out of two connected cross suits. Lakshmi Narayana Aiyar is the plaintiff in the principal suit. His suit was for redemption of a mortgage (the deed being dated 15th November 1865) for 514 Rupees. The suit was for the redemption, not of the entirety of the mortgaged properties, but only of a definite half share on payment of half of the mortgage amount that is, Rs. 257 and of the Rs. 514. The facts are a little complicated but for the purposes of this judgment it is only necessary to state the following.
2. Sivaparamanayagam Pillai was the owner of the half share in dispute. One Samikalathur Aiyar purchased Sivaparamanayagam Pillai’s half share in the equity of redemption in Court auction in 1873 held in execution of a money decree, after attaching the property subject to Ramappa Pillai’s mortgage of 1865. The mortgagee (Ramappa Pillai) purchased the equity of redemption from Samikalathur Aiyar’s son Subbaiyar in 1893. Now the plaintiff ignoring this purchase by the mortgagee, Ramappa Pillai, of the equity of redemption, (which purchase prima facie put an end to the mortgage and made Ramappa Pillai the full owner of the plaint half share) brought this suit ‘to redeem, basing his title on the fact that the heir of the heir of Sivaparamanayagam Pillai sold that equity of redemption in 1909 to the plaintiff’s vendor. It is clear from the above statement of facts that Sivaparamanayagam Pillai’s heir’s heir, had prima facie no right to claim any title in the equity of redemption after it had been sold away to Samikalathur Aiyar in 1873 in Court auction. The ingenious contention put forward on behalf of the plaintiff is that though Samikalathur Aiyar purchased the equity of redemption in 1893, he did not get symbolical delivery of that incorporeal right, and hence the mortgagor, Sivaparamanayagam Pillai and his heirs got back the title to the equity of redemption on the lapse of 12 years from Samikalathur Aiyar’s Court auction purchase in the year 1873.
3. It should be remembered that the actual possession was in the mortgagee, Ramappa Pillai, all along. The contention that a judgment debtor who had only an incorporeal right and had not actual possession of the land and whose incorporeal rights were sold away in Court auction gets back title to those incorporeal rights, if the Court auction purchaser does not get symbolical delivery, is a rather startling proposition and no authority was cited in support of it. If I understood the appellant’s (plaintiffs’ Vakil Mr. S. Ramaswami Aiyar aright, he seemed to contend that the incorporeal right which was vested in the judgmentdebtor continued to remain in his possession owing to the Court auction purchaser not getting symbolical delivery of it that it so remained in his possession adversely to the Court auction purchaser and that by 12 years adverse possession the judgment-debtor got back that incorporeal right. I can understand adverse possession of land by actual possession or by the receipt of rents. But an adverse possession of any interest in land by a person who is not deriving any benefit whatever during the period of the alleged adverse possession is, I must confess, rather unintelligible to me. A purchaser in Court auction even of tangible immoveable property is not bound to take delivery of the property purchased; but if the judgment-debtor was in actual possession thereof and if the Court auction purchaser allowed the judgment-debtor to remain in possession for 12 years, then he would be barred by limitation from afterwards claiming possession. If the judgment-debtor was not in actual possession but was receiving rents from his tenants and if the court auction purchaser allowed the judgment-debtor to be receiving rents from the tenants for 12 years after the purchase, then also the Court auction purchaser would be ordinarily barred from getting possession under his title as court auction purchaser. He could how-ever, succeed in a suit for possession if brought within 12 years though he has not applied under Order 21, Rule 95 and Order 21, Rule 96 for possession through Court. But if the judgment-debtor him-self is neither in actual possession nor was receiving any benefit from the land, from a tenant or other person, in actual possession, I am unable to see how the judgment-debtor could be enjoying any right in such cases adversely to the Court auction purchaser. Even in the case of a tenant who was paying rent to the judgment-debtor the court auction purchaser could persuade such tenant to attorn to him without obtaining symbolical delivery of the property under Order 21, Rule 96 and the judgment-debtor thereafter could have no opportunity to claim the enjoyment of any adverse right in the property against the court auction purchaser nor Ramaswami Aiyar’s argument if accepted would run counter to article 137 of the Limitation Act which gives 12 years to the purchaser of an incorporeal right not from the date of the sale but from the date when the judgment-debtor becomes first enabled to possession.” In the present case, the court auction purchaser’s not applying for symbolical delivery of the equity of redemption purchased by him, cannot enable the judgment-debtor to put forward the claim that he continued in adverse possession of the intangible right as mortgagor though he was not deriving the slightest tangible profit from the mortgaged lands which were in the possession of the usufructuary mortgagee. In the result the second appeal fails and is dismissed with costs.
4. In the connected second appeal 1404 of 1912 the plaintiffs are the daughter’s sons of the mortgagee, Ramappa Pillai. It has been decided in the connected suit that Ramappa Pillai, by purchase of the equity of redemption in 1893 from Sami-Kalathur Aiyar’s son Subba Aiyar became the full owner of the plaint property. The plaintiff’s suit is for a declaration of their title to the property as purchasers from Ramappa Pillai’s son’s widow and heir. The 2nd defendant in this suit is the plaintiff Lakshminarayana Aiyar in the cross suit. His defence based on the alleged loss by Samikalathur Aiyar of the title to the equity of redemption by adverse possession of the original mortgagor has been just now found against, and he is the appellant in the second appeal; the plaintiff’s suit for declaration having been decreed in the lower Courts. The 2nd defendant (appellant) having thus no legs of his own to stand upon, his learned Vakil Mr. S. Ramasami Aiyar contended that the plaintiff’s purchase from the 4th defendant (a qualified owner, who is, the widow of Ramappa Pillai’s son) cannot entitle him to full ownership and that the plaintiff’s suit for declaration of title must therefore fail. The lower Courts gave such a declaration because the plaintiffs wera next male reversioners of Ramappa Pillai’s son, the last male owner. But the learned Vakil argues that though they may be the next male reversioners there is female reversioner, the 3rd defendant’s (Ramappa Pillai’s) widow mother of the last owner (Ramappa Pillai’s son) still alive who intervened between the 4th defendant and the plaintiffs. The lower appellate Court held that though the 3rd defendant is the next reversianer she gave her consent in the course of the. trial of the cross suit to the Courts treating the sale by her daughter-in-law the 4th defendant in favour of her (3rd defendant’s) daughter’s son (the plaintiff’s) as valid against the 3rd defendant also and hence that there was nothing in the 2nd defendant’s objection. Having regard however to the Privy Council case in Amirita Lall Bose v. Bajonikant Mitter (1875) L.R. 2 I.A. 113 it is doubtful whether the 3rd defendant’s consent given in the course of the suit will make the alienation by the 4th defendant pass full title to the plaintiffs. But I think that the defendants 1 and 2 who have been found to have no title what-ever can have no legal interest in the plaint property which could enable them to consent to the lower appellate Court’s decree in the plaintiffs favour even if that decree is too widely worded in favour of the plaintiffs. We would therefore dismiss this second appeal also.
Hannay, J.
5. I agree.
