MOIDU Vs. MAMMUNHI BEAKY

JUDGEMENT

(1.) THIS appeal comes up before us on a reference by krishnamoorthy Iyer J. Interesting questions as to the nature of the transaction evidenced by Ext. B1, Illidarwar deed and whether the jural relationship created by the same has been extinguished and if extinguished what rights the parties have in respect of the properties covered by that document, arise for consideration. The short facts on which the aforesaid questions arise are: Two items of properties, 51 cents in Sy. No. 100/5 and another 59 cents in Sy. No. 100/6, situate in Pallikkara Gramam belonged to deceased Mammunhi. Mariyumma, asyumma and Abammad Kunhi are his children by his first marriage. Plaintiff is the son of Asyumma. By his second wife, Pathu, he has a daughter Aissabi, who is the 2nd defendant in this case. After the death of Mammunhi Ext. BI illidarwar deed was executed by all the heirs of Mammunhi, i. e. , the three children by his first wife represented by their mother as guardian, and the widow (the second wife) Pathu, who joined the execution of Ext. B1 in her own capacity and as guardian of the 2nd defendant. The consideration for the transaction was Rs. 565/- and was in favour of the 1st defendant herein who was the sole respondent in this second appeal. He died pending this second appeal and his legal representatives were impleaded as additional respondents Nos. 2 to 7. A term of 55 years was fixed in Ext. BI which was on 15 41925. The 1st defendant was as per that document allowed to effect improvements, construct buildings, dig wells and enjoy the property. It was provided therein that after the expiry of the term the mortgage-money of Rs. 565/- would be paid along with the compensation for improvements effected and constructions made, and the property redeemed. Subsequently, by Ext. B42 dated 14-4-1949 Mammunhi's two children (Mariyumma and Ahammad Kunhi) through their guardian, their mother, sold the share they had in the properties to the 1st defendant. It was stated in that document that the executants have 4/5th share in the property. The consideration recited is Rs. 600/- of which Rs. 452/-was adjusted in partial satisfaction of the mortgage amount; Rs. 148/-was received in cash. Immediately thereafter, on 19-4-1949 the widow of Mammunhi (second wife) and her daughter (2nd defendant) sold to the 1st defendant as per Ext. B43 their rights in the properties stating their share in them as 1/5th. The consideration was Rs. 200/- of which Rs. 113/- was adjusted towards balance mortgage amount and Rs. 87/-was reserved to be paid subsequently. It may be noted that one of the heirs of Mammunhi, Asyumma, was not a party either to Ext. B42 or to Ext. B43, and as such her interest in the properties was not conveyed to the 1st defendant, though the two documents between themselves purported to convey the whole of the property. It is the admitted case before us that Asyumma had 7/48 shares, and that all the other heirs together have only 41/48 shares in the properties.

(2.) PLAINTIFF, son of Asyumma, filed the suit claiming that Asyumma had an undivided 1/4th right over the suit property, which right devolved on him on her death as her heir and legal representative. According to the plaint averments as it originally stood, the 1st defendant had purchased the remaining 3/4th share. The plaintiff alleged that he is in constructive possession and enjoyment of the suit properties with the 1st defendant as a co-owner. On that basis he prayed for partition and separate possession of 1/4th share in the properties. He also claimed proportionate income. The 1st defendant contested the suit setting up his rights under Ext. BI Illidarwar deed and subsequent sales, Exts. B42 and B43. According to the 1st defendant the plaintiff would be entitled to recovery of possession of only his share and that only on redeeming Ext. BI Illidarwar deed. After the filing of the written statement the plaintiff was allowed to amend the plaint whereby the 2nd defendant was impleaded in the suit. Thereupon an additional written statement was filed by the 1st defendant wherein he claimed that Ext. BI transaction is one coming within the purview of S. 10 (v) of the Kerala Land Reforms Act, 1963 (Act 1 of 1964 ). He, also, in the alternative claimed that if redemption is decreed he would be entitled, besides the mortgage money, also to compensation for improvements the details of which be had already given in the first written statement. The plaintiff again amended the plaint alleging that the integrity of the mortgage was split up by the two sales, Exts. B42 and B43, and that therefore he is entitled to redeem his share on payment of proportionate mortgage amount. After the arguments were over the plaint was further amended. As the plaint now stands, it is the plaintiff's case that Ext. BI transaction stands extinguished for the reason that the 1st defendant has received the full mortgage amount as per the two sales Exts. B42 and B43; the plaintiff, therefore claims that he is entitled to recovery of possession of his share without payment of any amount.

(3.) THE learned counsel for the appellant referred us to two unreported decisions of this Court, viz. , S. A. No. 1125 of 1968 and S. A. No. 183 of 1969. THE former decision is by Raghavan C. J. and Kurup J. , and the latter by one of us (Nambiyar J.) and Krishnamoorthy Iyer J. In those cases the question that arose for decision was whether there existed a personal covenant by the mortgagor to pay the mortgage money so as to take the transactions discussed in those cases outside S. 58 (b) of the Transfer of Property Act. In the first of the aforesaid cases it was held that the mere provision for redemption on payment of mortgage amount at the end of the term fixed will rot amount to a personal covenant whereby the mortgagor is obliged to pay the amount at a stipulated time and that such a provision will not confer on the mortgagee the right to recover the amount on that particular date. Kurup-J. who delivered the judgment of the Court referred to the decision of Nambiyar J. in S. A. No. 183 of 1969 wherein it was pointed out that such a 'clause marks the earliest point of time at which the right of redemption accrues to the mortgagor and at which he may proceed to redeem the property on payment of the mortgage money'. We may also usefully advert to another passage in S. A. No. 183 of 1969 which makes the position more clear. That passage is "we do not think that the clause in question even accepting the translation as given in the appellate court's judgment imposes any obligation on the mortgagor to tender the mortgage amount at any stipulated time, which is enforceable at the instance of the mortgagee. " Personal covenant in a transaction of possessory mortgage will certainly take that transaction beyond the purview of S. 58 (d) of the Transfer of Property Act. We are in respectful agreement with the principle laid down in the unreported cases referred to. However, we do not think that these decisions are of any assistance to the appellant here. Here, the question is different and is about the second ingredient of a usufructuary mortgage as defined in the transfer of Property Act,