BHAGEERATHI PILLAI Vs. PRABHAKARAN

JUDGEMENT

(1.) DEFENDANTS 1 and 2 are the appellants. The suit was for recovery of plaint property with mesne profits. The plaintiffs, 3rd defendant and the deceased Kamapalan are the children of the deceased Adichan narayanan. The plaint property belonged to Adichan Narayanan and he sold the same to the 1st defendant on 29. 2. 1105 for 6500 fanams. Ext. A is copy of that sale deed. Out of the sale consideration a sum of 4431 fanams had been reserved with the vendee for discharging a hypothecation debt of 1104 in favour of one pichandy Chettiyar. The balance consideration of 2069 fanams had been received, as recited in Ext. A. The 1st defendant did not discharge the hypothecation debt and so, Adichan Narayanan instituted the suit O. S. 301 of 1108 in the munsiff's Court, Trivandrum, for realising the sum reserved in the sale deed. Pending the suit, Adichan narayanan died and the plaintiffs had got themselves impleaded as his legal representatives. In that suit, the 1st defendant had contended that, by virtue of the decree in O. S. 114 of 1097 of the District Court, Trivandrum, Adichan narayanan had lost his right to one-fourth of the plaint property, that, therefore, the sale deed in favour of the 1st defendant was invalid, that the 1st defendant was to get back the sale consideration actually paid by her from adichan Narayanan and that the latter was not entitled to a decree, as prayed for. Accepting the contention of the 1st defendant, a decree was passed in that case on 18. 1. 1110 allowing the 1st defendant to recover 2069 fanams with 12 per cent interest per annum charged on the plaint property from the date she surrendered the property to the plaintiffs in that case. Ext. B is copy of the decree, Ext. C copy of the judgment and Ext. D copy of the written statement filed by the present 1st defendant. The plaintiffs would say that possession of the 1st defendant as vendee had changed to that of a mortgagee, with a right to retain possession of the property for 2069 fanams. The suit was to redeem the mortgage after settling accounts with the 1st defendant as regards the profits collected by her and which had not been accounted for. The plaintiffs would say that the profits would come to 600 fanams per annum and that the 1st defendant would be entitled to get only 2069/6500 share out of the same and that she was to account for the balance. When such accounts are taken, it would be seen that the mortgage amount had been wiped off and that, on the date of the suit, a sum of 5962 fanams would be due to the plaintiffs. The suit was, therefore, for the recovery of possession of the property with past profits amounting to 5962 fanams and future profits at 600 fanams a year.

(2.) THE 2nd defendant is the 1st defendant's husband. He was impleaded in the case as it was stated that he had secured some right over the property. THE 4th defendant is Kamapalan's widow and the 5th defendant is the 4th defendant's daughter. Defendants 3 to 5 supported the plaintiffs. Defendants 1 and 2 contended that the suit was barred by limitation, that the plaintiffs were entitled to get only three-fifths share of the assets of the deceased Adichan Narayanan, that the decree in O. S. 301 of 1108 was invalid and not binding on the defendants and plaint schedule property, that the 1st defendant had, therefore, not become the mortgagee of the plaint schedule property, that defendants 1 and 2 were entitled to get the full profits from the property, that the profits would not however be 600 fanams as claimed by the plaintiffs, and that the plaintiffs were not entitled to any remedy. THE set off of the profits against the amount due to the 1st defendant was objected to.

(3.) THE main argument of the learned Advocate for the appellants was that, by virtue of Ext. B decree, no mortgage had been created, as contended for by the plaintiffs. We are not prepared to consider the propriety of the decree passed in O. S. 301 of 1108, as both parties had submitted to the same. THE effect of that decree was to allow the 1st defendant to retain possession of the property and to claim the sum of 2096 fanams (this is mentioned to be Rs. 300/- in that decree) with 12 per cent interest from the date on which she surrendered possession of the property to the plaintiffs. She can, therefore, retain the property until the amount due to her is paid. This has all the characteristics of a mortgage. THE learned Advocate argued that mortgages could be created only by acts of parties and not by operation of law. He based his argument for this on the provisions in the Transfer of Property Act, which does not provide for the creation of a mortgage, as contended for by the plaintiffs in the case.