PARUKUTTY MANNADISSIAR Vs. EASWARA CHETTIAR

JUDGEMENT

(1.) The plaintiff in O. S. No. 64 of 1953 on the file of the court of the District Munsiff of Palghat is the appellant before me, her suit having been dismissed by the Trial Court and the lower appellate court having concurred in the said dismissal.

(2.) The plaintiff and her brother Ittichathara Mannadiar are the sole members of the Vatassery tarwad, of which the latter is the karnavan. The suit property belonging to the Vatassery tarwad was outstanding on Saswatham tenure (permanent lease) with tenants from early days. This Saswatham right was obtained in assignment in the name of the mother of the plaintiff on 30th June, 1899. The plaintiff and her brother, after they became the only members of the family, executed a simple mortgage in favour of the 2nd defendant in 1931 for Rs. 30,000/-, hypothecating three items of properties, of which the second item was the one on which the aforesaid Saswatham right was created. In 1934 the plaintiff and her brother executed a usufructuary mortgage over the same three items of properties for Rs. 45,000/- in favour of the 2nd defendant. By this document the three items of properties were handed over in possession to the mortgagee. Some other properties in the erstwhile Cochin State were also usufructuarily mortgaged to the 2nd defendant, since the income from the three items of properties mentioned already was not sufficient to meet the interest on the mortgage money. Thereafter, the equity of redemption over the three items of properties was sold at the instance of another creditor and the 2nd defendant himself purchased the same at court auction, reserving on the said properties an amount of Rs. 30,000/- from the mortgage money. In pursuance of the court sale the 2nd defendant took symbolical delivery of the properties in 1935. Subsequently, the properties in Cochin State were also brought to sale by another creditor and the 2nd defendant purchased the same in court auction, reserving the balance mortgage debt of Rs. 15,000/- on those properties. The 2nd defendant obtained symbolical delivery through court on 3rd February, 1941. On 3rd February, 1953, that is, on the last day of the 32th year after the aforesaid symbolical delivery in 1941, the plaintiff filed the suit, out of which the present second appeal arises for recovery of possession of the plaint property, which is item No. 2 in the aforesaid mortgage documents, on the basis of her title as Saswatham tenure holder with mesne profits etc., alleging that by the two court sales the mortgage amount of Rs. 45,000/- was satisfied and what was sold through court was only the Jenm right of the Vatassery tarwad and not the Saswatham right of the plaintiff. The lower courts held that the Saswatham tenure was subsisting on the properties until the same automatically got merged with the Jenm right of the tarwad, when the plaintiff and her brother became the sole members of the Vatassery tarwad in 1920-21 on the death of Komu Mannadissiar, the sister of the grandmother of the plaintiff. The lower courts also held that all the rights of the tarwad were sold through court and purchased by the 2nd defendant, so that there was no Saswatham right subsisting separately in favour of the plaintiff at the time of the suit. According to the lower courts, though symbolical delivery was taken on 3rd February, 1941, the sale itself having been earlier, the suit brought on 3rd February 1953 was barred by limitation. The second appeal, as already mentioned, is against the aforesaid decision of the lower courts. It may be mentioned that the 3rd defendant is the legal representative of the 2nd defendant, who died pending suit and the 1st defendant is the purchaser of the properties from the 2nd defendant.

(3.) Both the lower courts have concurrently held that the Saswatham right existed on the property from early days and that right was purchased by the plaintiff's mother. In the two mortgage documents in favour of the 2nd defendant, namely Exts. A4 and A5, also there are recitals to the effect that the second item therein was being held by the plaintiff in Saswatham right. Therefore, it is beyond dispute that the Saswatham right existed, the only possible dispute being whether it subsisted after the death of Komu Mannadissiar or whether it merged with the Jenm right of the tarwad on the death of Komu Mannadissiar. On this question the learned Subordinate Judge in paragraph 9 of his judgment relies on Sec. 111(d) of the Transfer of Property Act, which lays down that a lease of immovable property determines in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. I am afraid that the learned Subordinate Judge is in error in this view. The Saswatham right involved in this case is one, which was undisputedly created prior to the Transfer of Property Act. S.2(c) of the said Act lays down that nothing contained in the Act shall be deemed to affect any right or liability arising out of a legal relation constituted before the Act comes into force, or any relief in respect of any such right or liability. This provision clearly shows that where tenures were created before the passing of the Transfer of Property Act, the acquisition of such tenures by the holder of a superior right cannot merge them in the superior right under the common law of this country before the Transfer of Property Act was passed. In such cases S.111(d) cannot have any application. If any further authority is required in support of this proposition Kumar Chandra Singh Dudhuria v. Saraf Chandra Goswami ( AIR 1938 Cal. 128 ) may be referred to. In Dulhin Lacchanbati Kumari v. Bodh Nath Tiwari ( AIR 1922 PC 94 ) Lord Shaw observes :