PARAMESWARAN NAMBURI Vs. NARAYANA PILLAI

JUDGEMENT

(1.) The plaintiff Devaswom whose suit was dismissed by both the courts below has brought this second appeal. The properties in the schedule attached to the plaint were in the possession of the Devaswom under a usufructuary mortgage. In Thulam 1057 a sub mortgage of the entire property was given to the predecessor in title of the defendant. The counterpart taken from the sub mortgagee is Ext. A. The estimated agreed income from the property was in excess of the agreed return to the sub mortgagee for his investment and the surplus, i.e., micham was agreed to be paid to the Devaswom every year with onakazhicha. The suit was filed in the year 1117, i.e., more than 50 years from the date of the sub mortgage. The relief sought in the plaint was recovery of the surplus payable to the Devaswom under the ethir deed for a period subsequent to the expiry of the said 50 years. Both the courts below dismissed the suit on the preliminary ground that redemption of the sub mortgage was barred on the expiry of 50 years from its date which is the period under the Travancore Law of limitation for redemption and that the mortgagor's title was extinguished thereby under S.28 of the Limitation Act with the result that a claim for michavaram thereafter cannot be maintained. The only point raised by Mr. Rama Iyer on behalf of the appellant is that the transaction is a complex one partaking of the characters of a possessory mortgage and of a lease, which should be regarded as distinct and separate though embodied in the same set of documents by and to the Devaswom and that the bar of limitation on account of the expiry of 50 years would affect only the mortgage part of the transaction and not the other part which is a lease. The relief asked for in the suit is for pattam payable under that art of the transaction which forms a lease. Reliance was placed upon two decisions of the erstwhile Cochin High Court reported in 16 Cochin 288 and 37 Cochin 320. In the earlier case it was held that a possessory mortgage whereunder the mortgagee is in receipt of income of the property in excess of what is agreed to be appropriated towards interest upon his advance which excess is agreed to be paid back to the mortgagor at stated intervals there is a relationship of land lord and tenant and that the assignee of the properties from the mortgagee would be personally liable for the rent so payable on the principle of privity estate. That principle would apply only to the assignment of a lease hold and not that of a possessory mortgage right. The Cochin High Court held that the assignee was personally liable for the rent as the transaction partook of the character of a lease. The second case dealt with the question whether the michavaram payable under similar circumstances to the mortgagor could be scaled down as rent under the Cochin Agriculturists' Relief Act. The question was answered in the affirmative by their Lordships. An anomalous mortgage partakes of both the characters of a mortgage and a lease and for the purposes mentioned in the said two cases the lease part of it can be regarded separately from its mortgage part. The question whether the lease part will survive the other part did not arise for consideration in those cases which appear to assume the subsistence of a relation of mortgagor and mortgagee. The question in this case however is whether when the redemption of the mortgage is barred and under S.28 of the Limitation Act the title of the mortgagor is extinguished it is possible to enforce that part of the transaction which partakes of a lease. It has been held uniformly that the period of limitation for a suit to redeem a kanom which is an anomalous mortgage is 60 years under the Indian Limitation Act, and that on the expiry of that period S.28 will operate to extinguish the title of the jenmi and convert the property into that of the kanomdar. Learned counsel for the appellant did not controvert this proposition. His only endeavour was to make out that the operation of S.28 is merely to extinguish the title of the mortgagor and not the title of the lessor. The transaction is in the main one of mortgage. The mortgagor who has the possession inducted the mortgagee into possession. The undertaking of the mortgagee to pay to the mortgagor the part of the income which is in excess of what is agreed to be appropriated towards return for his investment is dependent upon and ancillary to the mortgage arrangement. The liability arose on account of the mortgage transaction and its continuance should be coextensive with the subsistence of the relationship of mortgagor and mortgagee. The liability of the mortgagee to pay the surplus collection cannot survive the determination of the relationship of mortgagor and mortgagee by efflux of time rendering the mortgagee the owner entitled as such to appropriate the entire income from the property. In our judgment it is the relationship of mortgagor and mortgagee that rendered the latter liable to pay pattom or michavaram to the mortgagor and with the cessation of that relationship the liability to pay pattom must also cease. This question arose for consideration in 31 TLJ 1111 and it was held that the mortgagor after a suit for redemption of mortgage is barred cannot seek to recover michavaram from the mortgagee. We are in agreement with the conclusions reached by their Lordships in that case.

(2.) In the result, the second appeal fails and is dismissed with costs.