KESAVA PILLAI Vs. NARAYANA PILLAI

JUDGEMENT

(1.) Heard the appellants counsel.

(2.) The learned counsel for the appellant urges that in Ouseph v. Thomman ( 1954 KLT 463 ) it has been laid down that in cases of redemption of mortgages the paddy consideration of the mortgage has to be commuted as on the day when redemption is actually sought by the mortgagor, and that that rule should be applied in this case also. I cannot accept this contention. That ruling only laid down the manner in which debts in kind may be commuted for purposes of discharge through court when there is no statutory provision therefor. It has no application to a case where a statute has laid down the particular mode of commutation as in Explanation II to S.2 (c) of the Kerala Agriculturists Debt Relief Act, 1958. The said Explanation reads:

(3.) The learned counsel for the appellant then contended that the debt in this ease must be deemed to have become payable only when redemption or discharge of the mortgage is sought by the mortgagor, and that the commutation should be worked out as on that date only. I cannot agree with this contention either. The expression used in the Explanation is the date on which the debt is incurred. The debt in the mortgage transaction was incurred on the date when the mortgage was struck between the parties. The mortgage by the very definition is a transaction for securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. A debt is therefore an essential element in a mortgage transaction. There is no case that the instant mortgage was for purpose of securing any future debt or the future performance of any pecuniary engagement between the parties. The consideration for the mortgage has been accounted for on the date of the mortgage itself and therefore the debt in the mortgage has been incurred on the date of the mortgage itself. If so by the Explanation quoted above it follows that the commutation in this case has to be at the rate that prevailed on the date of the mortgage itself.