THANU ITTIACHEN Vs. MUNDI

JUDGEMENT

(1.) The plaintiff is the appellant in both the appeals, and had, on 10-6-1121, demised the plaint A schedule items for a year to the first defendant. The lease, Ext. A, is a registered deed; and thereunder the lessee had stipulated an annual pattom of 190 paras of paddy, payable in Kanni and Makaram. The lessee had further offered the plaint B schedule property, which belongs to the lessee, as security for the due payment of the pattom. This part of Ext. A is important, and the following is the relevant extract from the translation furnished to us by the parties learned advocates:-

(2.) The Trial Court had found that the appellant had a prior charge to the extent of Rs. 300/-, for which alone stamp value was paid in the lease deed, and that the 12th defendant was not entitled to any priority by subrogation. As regards the price for paddy, the Trial Court found that the appellant could only get the price prevailing for the pattom payable during those months. Thereafter the appellant preferred A.S. No. 31/51 against the decree in the suit, which was to recover the pattom of 1125; and A.S. No. 32/51 against the decree which was in respect of the pattom for 1123 and 1124; and asked for a first charge on the 15 schedule property for arrears of all the years. The 12th defendant also filed a cross objection in A.S. 32/51 praying disallowance of the charge given to the appellant; and, alternatively, for the priority in his own favour as regards the amount paid to discharge the hypothecation debt of 1120. The lower appellate court dismissed A.S. 31/51 and 32/51, and allowed the 12th defendants cross objection. The aforesaid judgment rests on the finding that, charging the B schedule property, would not endure beyond the period, for which the A schedule property had been leased by Ext. A. The lower appellate court has further held that the lease and the mortgage, being separate bargains, the latter would not be automatically renewed, because S.59 of the Transfer of Property Act required all mortgages exceeding Rs.100/- to be through registered documents. Two appeals were filed in the Travancore - Cochin High Court, S.A 512/54 being against the decree in

(3.) The only issue argued before us is whether the charge on the plaint B schedule property would continue to be operative beyond the period mentioned in Ext. A, and we find the decisions on the legal point not to be unanimous. One view is that the security for the rent does not extend beyond the period mentioned in the lease, should the tenant continue in possession, and a fresh lease with the consent of the landlord, arises under S.116 of the Transfer of Property Act. Such an opinion been held in Kutti Umma v. Madhava Menon and another, (XI MLJ 186); Mamambath Pettiyeth v. M.M. Cheria Uthalamma and others, (16 Indian Cases 560); Rama Vadhyar v. Krishnan Nair ( AIR 1926 Mad. 398 ); and Gnanadesikam v. Antony ( AIR 1934 Mad. 458 ). The reasoning on which the view rests is that, all the terms of the expired lease do not extend to the new lease, and the charge, being separable collateral security, would not cover the new promise. Another reason in support is that a charge on immovable property must comply with the statutory provisions for creating charges, and the lessees possession after the expiry being under a new lease from year to year the old charge would not cover the fresh jural relations without complying with the statutory requirement The other view is that the security for the payment is closely linked with the liability to pay, and would accompany the rate, the time and other stipulations concerning the rent, all of which extend to the new lease due to the possession of the property leased being retained after the expiry of the period fixed under the lease deed. According to this View the security is a continuing guarantee for the discharge of the obligation to pay the rent, and would endure so long as the liability to pay continues. This had been consistently held by the Cochin High Court and in Devaki Amma v. Ramachandra Kammathi ( 1955 KLT 173 ), where the learned Judges found the charge under the expired lease to be available beyond the period of the lease. The view of the Travancore High Court had not been consistent, and the Madras High Court also in Ramakrishna v. Bargavi Amma ( AIR 1947 Mad. 424 ), has held that the provisions securing rent upon immovable property in a lease for a term applied to the holding after the period had expired. In these circumstances, these appeals had been referred to the Full Bench, and particularly because the correctness of the observation in Devaki Ammas (1955 KLT 173) case that the security for the arrears of rent extends beyond the period even when the earlier lease and charge be under the Transfer of Property Act, was found doubtful. It is, however, clear that the choice of either of the aforesaid views would be unnecessary, where the lessor be claiming the benefit of the charge during the period, which is enlarged by a statute, and the legal position in this case is such. Ext. A had been executed when the Cochin Verumpattomdars Act, No. VIII of 1118 was operative; and S.4 of the Act reads as follows:-