KUNHUKUTTY AMMA Vs. KUMARANUNNI NAIR

JUDGEMENT

(1.) The defendant in S.C.S. No. 103 of 1959 on the file of the court of the Munsiff of Palghat is the petitioner before me and the short question involved in the case is one regarding the interpretation of S.11 and 25 of the Kerala Agriculturists Debt Relief Act.

(2.) The defendant petitioner and her deceased husband executed a possessory mortgage on 23rd May, 1956 creating a mortgage over eight items of immovable properties for a sum of Rs. 3,000/- in favour of the plaintaiff respondent. The said mortgage document is Ext. A1. Under that document the mortgagee had to appropriate, out of the income of the properties which was assessed at 186 paras of paddy per year, 120 paras towards interest of mortgage amount and pay the balance of 66 paras of paddy per year as purappad to the mortgagors. On the same day the mortgagors took back the properties mortgaged on lease evidenced by Ext. A2, under which they agreed to pay 120 paras of paddy every year in Kanni and Makaram to the mortgagee after appropriating 66 paras of paddy towards purappad due to them under the mortgage. The suit, out of which the present C. R. P. arises, had been filed for recovery of arrears of rent under Ext. A2. The defendant contended that she was liable to pay only interest at 5 per cent on the mortgage account under S.11 (6) of the Agriculturists Debt Relief. Act. The plaintiff, on the other hand, raised the contention that the transaction was saved by S.25 (c) or (e) of the same Act and therefore he was entitled to the plaint claim in full. The lower court accepted the contention of the plaintiff and decreed the suit as prayed for and the defendant has filed the present revision questioning the correctness of the said decision.

(3.) S.11 (1) of the Act enacts that S.11, subject to the provisions of S.25, applies to all subsisting mortgages executed by an agriculturist at any time before the commencement of the Act and by virtue of which the mortgagee is in possession of the property mortgaged or any portion thereof. The explanation to that sub-section further lays down that a mortgagee shall be deemed to be in possession of the mortgaged property, notwithstanding that he has leased it to any person other than the mortgagor. Then sub-sections 2 to 5 of S.11 make certain provisions regarding such mortgages, I mean mortgages whereunder the mortgagee is in possession, and I am not concerned with those provisions in the present case. Sub-section 6, with which I am directly concerned, enacts that nothing contained in sub-sections 2 to 5 shall apply to mortgages, where the property mortgaged has been leased back to the mortgagor by the mortgagee. To such mortgages clauses (a) and (b) of sub-section 6 apply. Clause (a) enacts that such a mortgage shall be deemed to be a simple mortgage from the date of the lease back and the provisions of the Act shall apply to the debt covered by the mortgage. Clause (b) lays down that interest payable on such a mortgage, after the commencement of the Act, shall be at 5 per cent per annum. I am not concerned with sub-section 7 of S.11 in the present case.