NARAYANA PILLAI Vs. LEKSHMANAN

JUDGEMENT

(1.) In O.S. 15 of 1959 on the file of the Munsiffs, Court Quilon, the respondent herein sued the petitioner for the redemption of a possessory mortgage (an otti) for Rs. 700/- executed by him on 5-9-1950. The redemption he sought was in accordance with the provisions of S.11 of Act 31 of 1958-that he is an agriculturist entitled to the benefits of the Act was not disputed - that is, on deposit of half the mortgage amount. The defence was that there was a deed of further charge in the sum of Rs. 550/- executed on 21-2-1957, and that the plaintiff was not entitled to recover without depositing half this sum as well. Pending suit, the plaintiff filed an interlocutory application, CMP. No. 1529 of 1959, out of which the present revision arises, claiming the very relief claimed in the suit, namely, delivery of the property to him in view of the deposit he had made. Surprisingly enough this application was entertained, but was dismissed on the merits, the learned Munsiff upholding the contention of the defendant that the plaintiff could recover only on depositing half the amount covered by the deed of further charge as well. The plaintiff went up on appeal and the appellate court holding that the plaintiff was not liable to deposit half the sum covered by the deed dated 21-2-1957 (wrongly given as 28-2-1957 in the judgment of appellate court) but was liable only to deposit the interest in arrears under that document in view of S.11(2) (b) of the Act, reversed the order of the first court and directed delivery of the property to the plaintiff on his depositing the interest in arrears.

(2.) In my view the plaintiffs application should have been dismissed in limine. This is the first time I hear of a plaintiff seeking possession of property by way of interlocutory relief when his suit itself is for possession and is contested. Moreover, the defendant had, by his written statement, claimed compensation for improvements, and, until that claim bad been adjudged - S.11[2][c] of the Act requires the value of improvements as determined by the court to be deposited before recovery can be obtained-there was no knowing that the deposit made by the plaintiff was adequate even on the assumption that he was not bound to redeem also the deed of further charge dated 21-2-1957.

(3.) Further, it seems to me abundantly clear that the view taken by the first court that the plaintiff was bound to deposit also half the amount covered by the deed of 21-2-1957 is right. That deed calls itself a Purakkada adharam and describes the amount advanced thereunder as Puramuri. These very terms imply that the amount due under the deed of further charge is payable with the original mortgage amount, in other words, that the effect of the transaction is to increase the principal of the original mortgage by the amount subsequently advanced-see the definition of Puramkadom at page 456 of Sundara Aiyars Malabar and Aliyasanthana Law, 1922 Edition. The terms of the document also are in keeping with the name given to it by the parties, for, there is the express recital that, on demand, the mortgagor would pay the amounts due under both the documents together and obtain a release of the property and, further, that in the event of default the mortgagee could sue and recover both the amounts together from the mortgagor and out of the property. This is clearly a contract to the contrary excluding the operation of S.61 of the Transfer of Property Act and giving the mortgagee the right of consolidation. Therefore, for purposes of S.11 of Act 31 of 1958, the mortgage has to be regarded as of the consolidated amount, and the deposit to be made is one half of the principal sum covered by both the documents together with the interest accrued due on the second document and the value of improvements as determined by the court.