KUMARI ITTAMAN Vs. BHASKARA MENON

JUDGEMENT

(1.) Defendant is the appellant. On obtaining a loan of Rs. 500/- he had executed the mortgage deed Ext. A dated 25-12-1092 in favour of the plaintiff authorising him to retain possession of the plaint property and to utilise the income therefrom for payment of the pattom of Rs. 20/- due to the original jenmi of the said property and for appropriating for himself the original towards interest on the mortgage amount of Rs.500/-. The mortgagor further undertook to pay up the mortgage amount on demand and also to be personally liable for the same. Ext. A was followed by another document Ext. B of the same date executed by the defendant mortgagor in favour of the plaintiff. As per Ext. B the defendant took back the properties on lease from the plaintiff. The stipulation in the lease deed was to the effect that out of the agreed annual pattom of Rs. 80/- a sum of Rs. 20/- would be paid by the defendant himself to the Chittoor Devaswom, the jenmi of the property and the balance of Rs. 60/- would be paid to the plaintiff in half yearly instalments of Rs. 30/- each. Since the pattom thus payable to the plaintiff was left in arrears, by the defendant the present suit was instituted by the plaintiff for recovery of possession of the property together with arrears of pattom from the year 1109 onwards as scaled down under the provisions of the Cochin Agriculturists' Relief Act, XVIII of 1114 and also with future pattern at the rate specified in Ext. B from the date of suit to the date of recovery of property. A decree for recovery of the mortgage amount was also claimed in the suit and under O.2 R.4 of the Cochin Civil Procedure Code necessary sanction for including in this suit such a claim also was obtained from the Court by the plaintiff. The defendant resisted the suit on several grounds, the most important of them being that the mortgage deed Ext. A was supported by consideration only to the extent of Rs. 250/-, that the two documents Exts. A and B were together intended to evidence only a simple hypothecation transaction, that the entire amount due to the plaintiff has been paid off, that the defendant is in possession of the property not as a lessee but as owner, that the plaint claim is barred by limitation and the plaintiff is not entitled to get recovery of possession of the property or any other relief. These contentions were repelled by the Trial Court and the plaintiff was given a decree limiting the arrears of pattern for the period from 1110 onwards only. On appeal, by defendant the lower appellate court modified the Trial Court's decree by disallowing plaintiff's claim for recovery of the mortgage amount by holding that such claim had become barred by limitation. On other points the decree of the Trial Court was confirmed. Those points are again urged by the defendant in this second appeal. In the objection memorandum filed by the plaintiff respondent he has objected to the lower appellate court's decree disallowing the claim for the mortgage money and directing the parties to recover proportionate costs.

(2.) The first point urged on behalf of the defendant appellant is that the transaction evidenced by Exts. A and B was intended and treated as a simple hypothecation. This point was concurrently found against the deft.. by the lower courts. The evidence on record is decidedly in favour of the correctness of that finding. A reading of Exts. A and B makes it clear that the parties definitely intended the transaction under Ext. A to be usufructuary mortgage and that under Ext. B to be a separate and independent lease. Ext. A is styled as a usufructuary mortgage and it states that possession of the property was given over to the mortgagee with authority to appropriate the income therefrom towards the interest due on the mortgage amount. Under Ext. B the defendant lessee has undertaken to surrender possession of the property to the lessor at any time on demand irrespective of the question of the termination of the mortgage. The arrears of pattern that may be found due under Ext. B is expressly made a charge on the defendant's right over the properties subject to the prior charges for the mortgage amount. This is a sure indication of the fact that the parties intended the rights and liabilities arising out of Exts. A and B to be separate and distinct in themselves. The lower courts' finding to that effect does not therefore call for any in reference. On the strength of the provisions contained in the Cochin Agriculturists' Relief Act (Act XVIII of 1114) it is argued on behalf of the appellant that the rent or pattom payable under Ext. B has to be treated merely as interest on the mortgage amount covered by Ext. A and that nothing by way of pattom can be decreed for the period subsequent to 1-l-1115 also. It is also argued that consistent with the finding of the lower appellate court that the claim for the recovery of the mortgage amount had become barred by limitation the claim for interest on such principal sum should also have been disallowed. Both these arguments are based on the assumption that the pattom claimed under Ext. B represents only the interest on the mortgage amount. In view of the finding already recorded that Ext. B is an independent and separate transaction by itself there can be no force in the contention that the pattom payable under Ext. B represents the interest on the mortgage amount. The provisions contained in S.8 and S.9 of the Agriculturists' Relief Act do not in any way stand against the plaintiff's claim for recovery of the pattom due under Ext. B. These sections relate only to the scaling down of the interest which had accrued due on all loans outstanding on the date of the Act. By clause (1) of S.8 arrears of interest up to 1-1-1107 were completely wiped off. By S.9 the interest due for the period from 1-1-1107 up to 1-1-1115, the date of the commencement of the Act was limited to 6% per annum. The Explanation to S.9 of the Act stated that the interest referred to in S.8 and S.9 includes pattom payable by the mortgagor to mortgagee on a lease back of the mortgaged property. It is thus clear that the pattern due under a lease deed like Ext. B has to be treated as interest only for the limited purpose of scaling down as provided for in S.8 and S.9 of the Agriculturists' Relief Act. There is no warrant or justification for holding that such pattom has to be treated as interest for all other purposes as well. Consistent with the provisions of S.8 and 9 of the Agriculturists' Relief Act plaintiff had given up all claim for the pattom due up to 1-1-1107 and had limited the claim for the subsequent pattom due up to 1-1-1115 to an amount representing interest at 6% per annum on the mortgage amount. Since pattom due under a lease like Ext. B has to be treated as interest only for the limited purposes of S.8 and S.9 the amount due for the period from 1-1-1115 onwards can be claimed as pattom itself and at the rate stipulated in the lease deed. Such a claim is perfectly sustainable. This is also the view taken in Renganatha Prabhu v. Raman Vydian 37 Cochin Law Reports 147 Thus even assuming that the finding of the lower appellate court that the claim for recovery of the mortgage amount has become barred by limitation is correct that cannot in any way affect the claim for recovery of the pattom due under the lease deed Ext. B, because the claim for pattom is independent in itself and not by way of interest following the principal amount of the mortgage money.

(3.) The next contention urged on behalf of the appellant defendant is that the plaintiff is not entitled to get a decree for recovery of possession of the property from the defendant. Under the terms of the mortgage deed Ext. A the plaintiff is entitled to be in possession of the mortgaged property until redemption by the mortgagor. The present possession of the mortgagor defendant is merely in his capacity as the lessee under the lease deed Ext. B executed by him in favour of the plaintiff. So long as the plaintiff's rights as lessor subsists his claim for recovery of possession of the property cannot be resisted by the lessee. No doubt the lessee in this case happens to be the mortgagor under Ext. A. But that fact is of no consequence in the suit for eviction brought forward on the strength of the lease deed Ext. B. The mortgagor defendant's right to get back possession of the property from the mortgagee will arise only on redemption of the mortgage Ext. A. The defendant under the lease deed Ext. B cannot also claim any fixity of tenure under S.4 of the Cochin Verumpattomdars' Act (Act VIII of 1118). Leases like Ext. B granted by the usufructuary mortgagees are expressly excluded from the scope of that Act as per clause (b) of S.3 of the Act. The learned advocate for the appellant argues that the plaintiff cannot be said to be a usufructuary mortgagee under Ext. A so as to entitle him to the benefits of the exception granted by clause (b) of S.6 of the Verumpattomdars' Act. We see no force in this contention. A reading of Ext. A shows that it satisfied all the essential features of a usufructuary mortgage. There is also a personal liability undertaken by the mortgagor for the mortgage amount. This additional undertaking in Ext. A cannot by itself destroy the effect of the other essential features of the document as a usufructuary mortgage. Ext. A is none the less a usufructuary mortgage as it is ordinarily understood and as such the lease granted under Ext. B by the plaintiff mortgagee comes within the exception provided under S.3 of Clause (b) of the Verumpattomdars' Act. In this view of the matter also the plaintiff's claim for recovery of possession of the property from the defendant on the strength of Ext. B is sustainable.