AKKAMMA Vs. SULOCHANA

JUDGEMENT

(1.) 2nd plaintiff is the appellant. The suit was for redemption of a mortgage Ext. A1 dated 30-9-1920 for a sum of Rs. 1200/-. On the date of the document certain pieces of land were given possession of to the mortgagee for appropriation of the income thereof towards interest on Rs. 200/- out of the mortgage amount and for the balance of Rs. 1000/- the mortgagor had undertaken to pay interest. There was a prior mortgage subsisting on the properties which was directed to be redeemed by the mortgagee which could only be made in 1936 as per the term of the prior mortgage. The mortgage deed provided that after such redemption of the prior mortgage, the mortgagee was to continue in possession for a term of 20 years, but in case the interest on the sum of Rs. 1000/- from the date of the document up to the date of such redemption was defaulted, the mortgagee was to continue for a term of 34 years at the end of which period a settlement of accounts had to be made with compound interest on the mortgage amount at the rate of 8 per cent per annum with annual rests. It is admitted that no interest was paid before 1936 and as such the last clause in the mortgage deed had come into operation. The Madras Agriculturists Debt Relief Act, by its S.9A, having allowed redemption irrespective of the term in the mortgage, the plaintiffs have instituted the instant suit for redemption of Ext. A1 mortgage. It was a contention on their part that they were entitled to scale down the mortgage debt as per the provisions of S.8 of the Madras Act IV of 1938. The learned District Munsiff held that the plaintiffs were entitled to have the mortgage debt scaled down as prayed for. But, on appeal by the defendants, the learned Subordinate Judge held that, the mortgages in the taluks in which the suit properties are situate having been exempted from the operation of S.8 of the Act, no scaling down of the mortgage debt can be allowed in this case and he upheld the decree of redemption with the modification that the price of redemption would be as fixed in the appellate Judgment. The Second Appeal is by the 2nd plaintiff.

(2.) The provisions of S.9A, Clause (10) are clear that, except for the avoidance of the term for redemption, mortgages like the one involved in this suit are not affected by the provisions of the Madras Act IV of 1938; and in view of this provision the learned Advocate for the appellant did not seriously press the claim to scale down the debt under that Act. But he prayed that the matter may now be remanded to the Trial Court for refixation of the price of redemption in view of S.11 of the Kerala Act XXXI of 1958. It has been laid down in several cases by this court that, when a subsequent legislation comes into force during the pendency of an appeal, governing transactions like the one involved in the litigation, the rights of the parties to the suit have to be adjusted in the light of such subsequent legislation also. See Kunjukrishnan v. Krishna Pillai ( 1958 KLT 645 ); Karthiayani v. Parameswara Panicker ( 1958 KLT 973 ) and Porinchu v. Ouseph (1959 KLR. 138). Mr. Venkitakrishnan., the learned counsel for the respondent vehemently contended that Act XXXI of 1958 would not apply to the suit mortgage. Even though Madras Act IV of 1938 has been repealed by the Kerala Act XXXI of 1958, the learned counsel would contend that all the rights that his client had acquired under the Madras Act would stand unaffected by such repeal. The Madras Act having excluded the suit mortgage from its operation, the defendant has acquired an immunity from having the suit mortgage scaled down and that immunity cannot be affected by the repeal of the Madras Act by the Kerala Act; and therefore the defendant mortgagee is entitled to get the mortgage amount in a lump together with all the interest as provided for in the mortgage deed.

(3.) I am unable to accept this contention of the learned counsel for the respondent. By the time the Kerala Act XXXI of 1958 came into force there were two Debt Relief Acts in force in the two parts of the State. In the Malabar District, as defined in the States Reorganisation Act, the Madras Act IV of 1938 was in operation; and in the rest of the State there was the corresponding Travancore-Cochin Act. Both these Acts were repealed by the Kerala Act XXXI of 1958 and in their place new provisions for relief of the agriculturist-debtors were provided therein. To say that the repeal of the old Acts cannot affect the rights of the parties under the old Acts as viewed by the learned counsel for the respondent would be to make the entire Act inoperative. A construction which would nullify the legal effect and operation of the entire Act, unless there is strong and cogent reason to uphold the same, cannot be accepted by the courts.