Chhangani, J. - (1.) THIS is an appeal by the plaintiffs in a suit for redemption and partition of property.
(2.) AS the counsel for the parties ate not disputing the findings of facts arrived at by the lower court and have raised contentions only in regard to the legal effect of these facts found by the lower court, we consider it unnecessary to refer in any great detail to the pleadings of the parties. It will be sufficient to state the facts as found by the trial court. The pedigree table of the parties will be helpful in properly appreciating the facts of the case. Bhagwandas Shyamdas Jamnadas Narayandas Haridas Shankerlal Moolraj Murlidhar (adopted) Madanlal (adopted) (Deft. No. 1 ). Jainarain Banshidhar Laxminarain (Pltf. No. 1) Balkishan Pltf. No. 2 Gordhandas Pltf No. 3 The disputes relates to a house which, once the joint family property of the four sons of Bhagwandas, fell to the share of Narayandas and Haridas on partition. Narayandas and Haridas effected a further partition of this house in Svt. 1946 and each got half share in the house. Haridas however died in Svt. 1954 and Narayandas inherited the half share of Haridas in the house and became its full owner. Narayandas died in Svt. 1975. At the time of the death of Narayandas, the persons surviving him in the line of Shyamdas were Banshidhar and Laxminarain and that in the line of Jamnadas was Murlidhar, his adopted son. In law, Murlidhar as the neatest collateral would become the heir pi Narayandas and should have alone inherited the house of Narayandas. In fact, however. Banshidhar in the line of Shyamdas claimed to have inherited half the share in the house of Narayandas and mortgaged that share with Sonar Naraindas Nar Singhdas of Jodhpur, vide Ex. P. 3 against a loan of Rs. 2500/ -. The consideration of the mortgage consisted of an amount of Rs. 1005/4/- as the amount due to the mortgagee under a previous mortgage of the same house executed in his favour by Naraindas; Rs. 546/5/6 being half the amount of Rs. 1092/11/- borrowed by Banshidhar along with Murlidhar to satisfy certain decrees existing against Naraindas; Rs. 65/8/- being the half of an amount of Rs. 131/- obtained jointly by Banshidhar and Murlidhar for executing repairs in the suit house and finally an amount of Rs. 882/14/6 as a further advance obtained by Banshidhar alone. This claim of Banshidhar was made in the knowledge of Murlidhar, who not only did not contest it, but actually accepted and acquiesced in the same. He himself executed another mortgage in Svt. 1973 Falgun Sudi 1, (vide Ex. P. 2) in favour of the same mortgagee Naraindas Sonar in respect of the remaining half of the house in which the half share of Banshidhar was admitted almost on similar terms as Ex. P. 3 ). The mortgagee continued to remain in possession of the mortgage house on behalf of these two mortgagors till the year 1946. In 1946, Madanlal son of Murlidhar (Murlidhar having died in the meanwhile) redeemed his share in the house and further on 24th January 1946, obtained an assignment of the mortgagee's rights in respect of half the house mortgaged by Banshidhar in his favour. In this assignment also, the right and title of Banshidhar was admitted: Subsequently, Madanlal mortgaged his half share with Shah Chhotmal on 20th of March, 1947 and by the same deed, he created a submortgage in respect of half the house of Banshidhar thus admitting Banshidhar's title in all these documents. Banshidhar having died, Laxminarain who is his nephew an His sons, Balkishan and Gordhands minors represented by Laxminarain, served a notice upon Madanlal offering to pay the mortgage money and seeking redemption of the' house. Madanlal having not responded to the notice, this suit was filed for redemption and partition. The contentions on these facts found by the lower court raised by the counsel for the parties are as follows : The appellants' contend that Banshidhar should be deemed to have acquired title and interest in half the house of the deceased Naraindas under some family arrangement to be inferred from the conduct of Murlidhar and Banshidhar, each mortgaging half the share in the house with the mortgagee Naraindas Sonar. Alternatively, Banshidhar having obtained possession in the Samwat year 1973, his title to half the share became perfect and unassailable on account of adverse possession and by prescription. The answer of the defendant respondent is that the house was in possession of Naraindas Sonar under a pre-existing mortgage created by Naraindas himself and therefore, the subsequent mortgage created By Banshidhar should be treated as only a a paper transaction. Explaining Murlidhar's conduct in admitting Banshidhar's half share in Narayandas's property and himself creating a mortgage in respect of any one-half of the house, he submitted that these were mere admissions from which he is quite competent to resile. The trial court, accepting the defendants' contention has held that these were mere admissions made by Murlidhar and repeated by Madanlal only under a mistaken view of their rights and consequently, it was perfectly open to Madanlal to resile from and assert his title. We may observe that the trial court was hardly justified in treating the matter in such a simple manner. In our opinion, the conduct of Murlidhar as well as of Madanlal do not indicate merely admissions but go further: they clearly admitted the claim and title of Banshidhar, recognized his position and thus acquiesced in the assertion of a title by Banshidhar hostile to their interests. Murlidhar must have done so with full consciousness of his rights and in his lifetime he never challenged the claim of Banshidhar. It must be pointed out at this stage that Banshidhar while creating a mortgage of half the share in Narayandas's house in favour of Naraindas Sonar, took a further loan of Rs. 882/12/- and, therefore, it is futile to contend that Naraindas Sonar continued to remain in possession of the house under an old transaction. On the other hand, it has to be inferred that as a result of the creation of this mortgage by Banshidhar, Banshidhar in fact came into possession of half the house of Naraindas under either some family arrangement or under an assertion of the hostile title within the clear knowledge of Murlidhar. The mortgagee Naraindas Sonar shall be deemed therefore to have remained in possession of the house on behalf of Banshidhar. In these circumstances, Banshidhar's title in half the house became perfect and unassailable after the expiry of the prescribed period of limitation. Murlidhar and his son Madanlal having never repudiated Banshidhar's title and having on the other hand admitted it, it is not open to them to now treat their previous admissions as mere inconclusive admission of title and thus challenge the title of Banshidhar. Unfortunately, this aspect of the case was not properly canvassed before the lower court, which went wrong in omitting to consider the case from this point of view and treating Murlidhar's admission as capable of being resiled from at any stage. On a consideration of the facts and circumstances of the case, we are fully satisfied that Banshidhar came into possession of half the share in Samwat 1973 and continued to remain in possession through the year 1946 and his title to half share in the house became perfect and indefeasible. In the above view, we may refer to the following cases. In Dwarkanath Chowdhary vs. Shashtikinkar Banerjee (1), it was held that, ''where the plaintiff is the sole owner of an estate in which the disputed land is situated, and the plaintiff and the defendant are joint owners of an adjoining estate, and the land in dispute has been held by the plaintiff and the defendant by mutual consent as part of their joint estate for a period of more than twelve years before suit in ignorance of their rights, limitation by discontinuance of possession by the plaintiff under Article 142 of the Limitation Act or by adverse possession of the defendant under Article 144, arises, and the suit for exclusive possession by the plaintiff will be barred. This case followed the principle laid down in an earlier Privy Council case, Vasudeva Pandit Khadanga Garu vs. Maguni Devan Bakshi Mahapatrulu Garu (2 ). In the Privy Council case (2), a grant in favour of one person was treated as a joint grant and the joint grant having remained in possession of both the parties for over twelve years and the person in whose name the grant was made having dispossessed the other person, on a suit by the person dispossessed, his title to the joint grant was considered complete after the expiry of twelve years under sec. 28 of the Indian Limitation Act. Mr. Haraklal referred to Raja Rajgan Maharaja Jagjit Singh vs. Raja Partab Bhadur Singh (3 ). The facts of that case are altogether different. In that case, the property was in possession of the receiver appointed in proceedings under sec. 145 Cr. P. C. and the property having remained in the custody of the court, there could be no question of acquiring a title under claim of adverse possession. The possession of the receiver cannot but be the possession on behalf of the person who may be found ultimately the owner entitled to possession thereof. Another case cited by him was Abhoy Sankar Mazumdar vs. Satyendra Prasanna Bose Mazumdar (4) which has also no application to the facts of the case. That was a case where the person claiming adverse possession failed to establish continuous and actual possession. The reference to constructive or ideal possession in that case is only casual. On a consideration of the cases as also the fundamental and basic principle, we find ourselves unable to accept the wide proposition that in order that a person can acquire title by adverse possession, it must always be physical and constructive possession cannot be availed of for this purpose. In our opinion, whether constructive possession can be considered adverse or not, cannot be decided in the abstract and must be decided on the fact and circumstances of each case. In the instant case, we have no doubt absolutely that Banshidhar having once acquired possession of the property, the continuance of actual physical possession by the mortgagee on his behalf must be treated as Banshidhar's possession to give him the benefit of claim under adverse possession. The trial court was completely wrong in dismissing the plaintiff's suit on the ground that he has no title to the property and that the defendant and his predecessors' admission of Banshidhar's title should be brushed aside as mere verbal admission. Consequently, we hold that the present plaintiffs, Laxminarian and his sons, who are the heirs of Banshidhar and who succeed to the title of Banshidhar are entitled to assert their claim and title in respect of half the house and they are entitled to redeem half the share from the defendant-mortgagee and the sub-mortgagee, Shah Chhotmal, now dead, and represented by his ions Kanmal and Chandmal.
(3.) THE second controversy was in respect of the amount incurred by the mortgagees in connection with the repairs of the suit house. THE trial court has held that an amount of Rs. 500/- should be deemed to have been incurred in this connection. Mr. Prakash Chandra has challenged the finding. He submits that there is no legal evidence to prove the expenditure of Rs. 500/- by the mortgagees. It is true that there is no evidence consisting of vouchers and account-books, but considering the house and the period during which the house remained under mortgage, the trial court's conclusion that an amount of Rs. 500/- must have been spent in connection with the repairs cannot be said to be unreasonable and we do not see adequate justification for disturbing this finding. The last question is with regard to the claim for interest. The trial court applying the rule of Damdupat has held that the amount of interest could not exceed the principal sum due from the plaintiff-mortgagors. Mr. Haraklal, however, has brought to our notice the case of Sheokaransingh vs. Daulatram (5 ). In this case, the rule of Damdupat was struck down on the ground of its being repugnant with Articles 14 and 15 of the Indian Constitution. The question that emerges for consideration is whether the declaration of the Rule of Damdupat as void should affect the decision of a suit filed on 30th September 1947, long before the Constitution came into force. Mr. Prakash Chandra's submission is that the Constitution being prospective and not retrospective and the suit having been filed before the Constitution came into force, it cannot be affected by the subsequent declaration of the law as void. According to him, pending proceedings shall have to be governed by the law as was in force before the coming into force of the Constitution. He has relied upon Keshavan Madhava Menon vs. The State of Bombay (6) and Habeeb Mohamed vs. The State of Hyderabad (7 ). In Keshavan Madhava Menon vs. The State of Bombay, their lordships of the Supreme Court observed as follows: - "before the Constitution came into force, there was no such thing as fundamental right. As the fundamental rights became operative only from the date of the Constitution, the question of the inconsistency of the existing Taws with those rights must necessarily arise on and from the date of those rights came into being. Therefore, Art. 13 (1) can have no retrospective operation, but is wholly prospective. If an act was done before the commencement of the Constitution in contravention of the provisions of any law, which, after the Constitution, becomes void, with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned. " In the latter case (7), it was observed that the Constitution had no retrospective effect and even if the law is in any sense discriminatory, it must* be held to be valid for all past transactions and for enforcement of rights and liabilities accrued before the coming into force of the Constitution. ;