SREE VARAHA DEVASWOM Vs. RUKKIA BAI

JUDGEMENT

(1.) THIS appeal arises from the decision of the Anjikaimal district Court in O. S. No. 122 of 1121. The Sree Varaha Devaswom, Azheekkal, who is the first defendant in the case, is the appellant. Defendants 10 to 15, to whom the plaint properties belonged originally, had mortgaged them under ext. IV dated 12. 10. 11100 in favour of the first defendant Devaswom for a consideration of Rs. 12,800/- and directed the mortgagee to appropriate the income of the properties towards the interest due on the mortgage amount. All the same, the mortgagors retained possession of the properties by executing Ext. V lease deed of even date in favour of the mortgagee. The lease amount payable under Ext. V was expressly made a charge on the equity of redemption of the properties. Subsequently on 4. 4. 1108, the properties were surrendered to the devaswom under Ext. III release deed, executed by the mortgagors-lessees, wherein they undertook to pay off the arrears of pattom amounting to Rs. 6599-7-6 and interest thereon together with the mortgage amount and to close the transaction without any delay. Out of the plaint items, which thus came into possession of the Devaswom, items 1 to 7,10,11 and 13 to 17 were again leased by the Devaswom on 14. 2. 1109 to one Thankamma, who is the wife of the 13th defendant and the mother of the 2nd plaintiff. It is stated that such a lease arrangement was brought into existence at the instance of the 15th defendant. Item 8 was already outstanding on lease with one Thomman Cheekku, whose legal representatives are defendants 3 to 9. Items 9 and 12 were enjoyed by the devaswom directly. In the meanwhile, the equity of redemption of the plaint items, except items 10 and 11, was sold in court auction in O. S No. 288 of 1101 on the file of the Cochin District Munsiff's Court and sale certificate was granted in favour of one Krishna Pillai and others. The rights over items 6, 7, 8,12 and 13, which these persons acquired under this sale certificate, were again sold in court auction in O. S. No. 167/1107 and were purchased by one kurien. The present second plaintiff acquired the rights under these two sale certificates and has thus become the owner of the items already mentioned. From him the first plaintiff has obtained a mortgage in respect of items 1 to 11 and 15 to 17. These two plaintiffs wanted to close the transaction under Ext. IV mortgage in favour of the Devaswom. But the parties could not come to an agreement as to the amount payable to the Devaswom in full satisfaction of its claims. The Devaswom accordingly instituted O. S. No. 126/1120 on the file of the anjikaimal District Court for recovery of the mortgage amount as well as the arrears of pattom due to it from the plaint items. Even though the arrears due to the Devaswom amounted to Rs. 6599-7-6 together with future interest thereon, the whole of such amount could not be recovered by the Devaswom because of the provisions of the Cochin Agriculturists' Relief Act (Act 18 of 1114 ). By S. 8 of the said Act, the whole of the interest due from an agriculturist under an outstanding debt up to 1. 1. 1107, was wiped off. The Explanation of S. 9 of the Act is to the effect that interest referred to in Ss. 8 and 9 includes pattom payable by the mortgagor to the mortgagee on a lease back of the mortgaged properties. Consistent with these provisions, the Devaswom could claim, out of the arrears of pattom mentioned in Ext. III release deed, a sum of Rs. 968-8-6 only, representing the arrears for the period subsequent to 1. 1. 1107 together with 6 per cent interest on the same, the total amount coming to Rs. 1264-9-3. The claim put forward in O. S. No. 126/1120 was for recovery of the mortgage amount of rs. 12,800/- and also of Rs. 1264-9-3 by way of arrears of pattom. Plaintiffs 1 and 2 in the present suit were defendants 14 and 13 in O. S. No. 126/1120. They resisted the claim of the Devaswom in respect of the arrears of pattom and interest there on, and contended that the right to enforce that claim had become barred by limitation and that therefore the Devaswom was entitled to a decree only for the mortgage amount less a sum of Rs. 136-4-4, which the devaswom had already realised out of the compensation amount awarded in connection with the land acquisition proceedings relating to item 11 of the plaint. These contentions were upheld and a decree was passed in favour of the devaswom for recovery, from the mortgagors personally and by the sale of the mortgaged properties, of a sum of Rs. 12666-11-8 only. That decree was confirmed in appeal. Ext. B is copy of the trial court judgment and Ext. VI is copy of the appellate court judgment in that case. The Devaswom did not care to execute the decree in that case. It may also be mentioned in this connection that the present first plaintiff, who was the 14th defendant in Ext. B case, had deposited in that case a sum of Rs. 14,914-0-0, but at the same time had contended that only the sum of Rs. 12,666-11-8 admitted to be due to the devaswom, should be disbursed to it.

(2.) IT was because the Devaswom was not prepared to accept the sum of Rs. 12,666-11-8 decree in Ext. B, case in full satisfaction of its claims in respect of the plaint items and to surrender possession of the properties, that the plaintiffs instituted the present suit for redemption of ext. IV mortgage and for recovery of possession of the properties with mesne profits from 27. 11. 1120, the date on which the mortgage amount due to the devaswom was deposited in Ext. B case. The Devaswom contended that the mortgagors are bound to pay off all the amounts in respect of which the devaswom has a charge on the mortgaged properties before claiming surrender of possession of the properties. Besides the mortgage amount of Rs. 12,666-11-8, the arrears of pattom due under Ext. V lease deed as also the arrears of Pattom due from Thankamma, the mother of the 2nd plaintiff, and from defendants 3 to 9, were also claimed by the Devaswom. All the claims under arrears of pattom have been negatived by the learned District Judge, who has held that the plaintiffs are entitled to redeem the plaint properties on payment of Rs. 12,666-11-8 towards the mortgage amount. He has also made the Devaswom liable for the mesne profits due from 27. 11. 1120, the date on which a sum in excess of the mortgage amount, found to be due to the Devaswom, was deposited by the present first plaintiff in Ext. B suit. Costs have also been decreed in favour of the plaintiffs.

(3.) THE next aspect to be considered is whether the mortgagee has the right to insist on the payment of such arrears of pattom also along with the mortgage amount due under Ext. IV before surrendering possession of the properties. THEse transactions came into existence long prior to the passing of the Transfer of Property Act in Cochin, which came into force on 1. 1. 1112. Hence the rights and liabilities of the parties in this case have to be determined in accordance with the principles of the common Law which governed mortgage transactions in the State prior to the passing of the transfer of Property Act. THEre is no definite pronouncement in any of the judicial decisions in Cochin laying down that a mortgagee, in whose favour several charges have been created in respect of the same properties cannot insist on a simultaneous redemption of all these charges. In Neelakanta Iyer v. Krishna Iyer (19 Cochin Law Reports 242) an opinion was expressed doubting the propriety of recognising in the State the doctrine of consolidation of mortgages. Apart from the expression of such an opinion by one of the judges who decided that case, no definite decision was arrived at either in favour of or against the doctrine. In fact the other judge, who took part in that decision, stated that he did not want to commit himself to a thorough rejection of the doctrine. THE question of the mortgagee's right to insist on simultaneous redemption again came up for consideration in Koru v. Krishan menon (29 Cochin Law Reports 13 ). THEre also it was not definitely laid down whether the common law of Cochin recognised a right in favour of a mortgagee to insist on a simultaneous redemption of all the mortgages in his favour in respect of the same property. An agreement by the parties for such simultaneous redemption was held to be valid and enforceable. It was also held that the attempt should be to ascertain whether the intention of the parties as expressed in the documents executed by them was for or against simultaneous redemption of the several mortgages. In an earlier case in Uzhuthra Warrier v. Subramania Pattar (3 Select Decisions (Cochin) it was definitely held that the plaintiff, who sued for redemption of certain proprieties demised on kanom, was bound to pay also the debt due under a purakkadom charged on the same properties before he could get recovery of possession of the properties. That decision clearly indicates that the common law of Cochin was in favour of the mortgagee's right to insist on simultaneous redemption of all the mortgages in his favour in respect of the same properties. THE principle accepted in the above case is applicable to the present case also where there has been first a mortgage Ext. IV in favour of the first defendant Devaswom, followed by a subsequent charge created as per Ext. V lease deed in respect of the same properties. It is also clear from Ext. III release deed executed by the mortgagors in favour of the Devaswom, that what was intended by the parties was that both the charges in favour of the Devaswom should be simultaneously redeemed. THE mortgagors have expressly undertaken in Ext. III that the mortgage amount together with the arrears of pattom and interest thereon would be discharged as early as possible. THE undertaking is as follows In view of such an undertaking made by the mortgagors to redeem simultaneously all the charges in favour of the mortgagee, the plaintiffs are bound to pay off the arrears of pattom also due to the first defendant Devaswom along with the mortgage amount, before the Devaswom can be asked to surrender possession of the plaint properties.