AIR 1967 SUPREME COURT 978

Supreme Court Of India

(From Gujarat)*

Hon'ble Judge(s): K. Subba Rao, R. S. Bachawat, J. M. Shelat , JJJ

(A) Limitation Act (36 of 1963) , Art.61, Art.65— Mortgagor and mortgagee - Adverse possession - Sale of mortgaged property by mortgagor to mortgagee - Sale is valid - Even though sale is held to be voidable character of possession by mortgagee as absolute owner remains unaffected and can ripen into title to property by prescription. Civ. App. No. 2 of 1956, D/- 9-12-1957 (Bom), Reversed. A mortgagee in possession under the terms of mortgage cannot, by merely asserting rights of ownership in the mortgaged property, convert his possession as mortgagee into possession hostile to the mortgagor. But the mortgagor can sell the mortgaged property to his mortgagee and thus put the mortgagees estate to an end and thereafter all the right, title and interest in the property would vest in the mortgagee. Such a sale would be valid and binding as between them and henceforth the character of possession as a mortgagee would be converted into possession as an absolute owner. Even if such a sale is held to be voidable and not binding on a subsequent purchaser the character of possession based on assertion of absolute ownership by the mortgagee does not alter, and if that possession continues throughout the statutory period it ripens into a title to the property.(Para 8) (B) Limitatio....