RAMAKRISHNA KURUP Vs. PANKAJAKSHAN PILLAI

JUDGEMENT

(1.) The suit for redemption filed in 1963, from which this second appeal filed by the defendant arose, had a chequered history, which need not be mentioned here. Accepting the claim of tenancy put forward by the appellant, the Trial Court dismissed the suit. But the appellate judge reversed the decision and passed a preliminary decree for redemption negativing the tenancy claim following the decision in Godasankara Valia Raja v. Tharappan Vareed ( 1961 KLT 138 ).

(2.) The suit property is 59 cents of paddy field, which was leased out to the predecessor of the appellant under Ext. B1 melvaipa pattachit on 14.6.1113 and subsequently mortgaged to him on 12.8.1113 under Ext. P1. Appellant came by these rights under assignments and the respondent got the equity of redemption. These facts are not in dispute. The three questions arising for consideration are;

(3.) There can be no merger of a lease and a mortgage, even where the two transactions are in respect of the same property and in favour of the same individual. For a merger to arise, it is necessary that a lesser estate and a higher estate should merge in one person at one and the same time and in the same right and no interest in the property should remain outstanding. In the case of a lease, the estate outstanding with the lessor is the reversion and in the case of a mortgage, the estate outstanding with the mortgagor is the equity of redemption. Neither the lease nor the mortgage is a higher or lesser estate than the other. Therefore, there cannot be a merger of a lease and a mortgage in respect of the same property. Even if these two rights in respect of the same property were to be united in one person, the reversion in regard to the lease and the equity of redemption in regard to the mortgage would be outstanding in the owner of the property. Therefore, there cannot be a complete fusion of all the rights of ownership in one person. When S.101 and 111 (d) of the Transfer of Property Act are read together, that is the result. This position of law, explained in Shah Mathuradas Maganlal and Co. v. Nagappa Shankarappa Malega and others ( AIR 1976 SC 1565 ), was reiterated by the Supreme Court in Gambangi Appalaswamy Naidu and others v. Behara Venkataramayya Patro ( AIR 1984 SC 1728 ) and thus it became the law of the land Raman Pillai v. Bhaskara Panicker ( 1990 (2) KLT 271 ) followed the same. Union of a charge and the ownership of an estate is merger either because the lesser estate is drowned in the greater or because a man cannot be his own debtor. Therefore, the first question has to be answered in favour of the appellant.