THANKIAH Vs. PONNAN NADAR

JUDGEMENT

(1.) This Second Appeal arises out of a suit for redemption of a mortgage and for an injunction to restrain the defendant from entering on the suit property.

(2.) The suit property belongs to the Thamarakulathu Madhom and was leased by the said Madhom to one Thomas Abraham under Ext. A on 4.1.1118 for a period of three years. The lease was one with premium, the premium amount being 700 Fanams. On 14.6.1122 the Madhom mortgaged the property to the defendant for 1400 Fanams under Ext. B. A sum of 700 Fanams out of the mortgage amount was reserved with the mortgagee for payment to the lessee and redemption of Ext. A lease. It was also provided in Ext. B that the mortgage could be redeemed only after 14.6.1125. On 16.3.1950 ie., 3.8.1125, the Madhom executed Ext. C superior mortgage in favour of the plaintiff authorising him to redeem Ext. B mortgage and recover possession of the plaint property. Alleging that the defendant had never redeemed Ext. A lease in pursuance of Ext. B mortgage and that he (plaintiff) had paid the premium amount to Thomas Abraham and redeemed Ext. A lease on 13.5.1950 and was in possession of the plaint property from the said date, plaintiff brought the suit which has given rise to this second appeal, for redemption of Ext. B mortgage. As an amount of 700 Fanams out of the mortgage amount of 1400 Fanams under Ext. B was reserved with the mortgagee himself as per the recitals in that document, for payment to Thomas Abraham in discharge of the premium amount and redemption of Ext. A lease, and since the plaintiff's case was that the defendant had not paid that amount to Thomas Abraham and redeemed Ext. A lease, he offered in the plaint to pay only 700 Fanams to the defendant for the redemption of Ext. B mortgage and deposited the same in court on 10.8.1950. He also alleged in the plaint that the defendant was attempting to trespass upon the plaint property and prayed for an injunction to restrain him from entering upon the property.

(3.) The defendant contested the suit. According to him, after taking Ext. B mortgage, he took a sublease for the plaint property from Thomas Abraham on 10.3.1122, and it was while he was thus in possession of the plaint property that the plaintiff took Ext. C superior mortgage. Plaintiff knew, at the time he took Ext. C, that the defendant was in possession of the property. In 1950, the defendant paid the premium amount to Thomas Abhraham and took a release of Ext. A lease in pursuance to Ext. B mortgage. Under the provisions of Ext. B the defendant is entitled to hold the property for three years after the redemption of Ext. A lease and, so, plaintiff can redeem Ext. B mortgage only after 1953. As he has paid the premium amount to Thomas Abraham and redeemed Ext. A lease in pursuance of Ext. B he is entitled to get the full mortgage amount of 1400 Fanams before the plaintiff can be allowed to redeem Ext. B. He has also effected improvements in the property and is entitled to get Rs. 300/- on that account.