KRISHNAMMA Vs. PARUKUTTY AMMA

JUDGEMENT

(1.) On behalf of the 1st defendant appellant two questions are argued before me in this second appeal. The first is whether the suit is bad for partial redemption; and the second, whether the appellant is not entitled to have the improvements valued under Act XXIX of 1958.

(2.) On the first question it is conceded that if S.60 of the Transfer of Property Act applies, the suit is bad :for partial redemption; but, if it is the law that prevailed in Travancore prior to the date on which the Transfer of property Act was made applicable to that area that is applicable, then the suit is not bad for partial redemption. On this question there is already a decision of this Court in Krishna Kurup Gopala Kurup v. Padmanabhan Raman ( 1957 KLT 1289 ) to the effect that the law in S.60 is not a mere matter of procedure; and therefore, if the mortgage sought to be redeemed came into existence prior to the date on which the Transfer of Property Act was made applicable, the question has to be decided under the law that existed in Travancore prior to that date. I had occasion to consider this decision in Frenchikkose Thomini v. Chacko Devasia (S. A. No. 1012 of 1960) in another connection. I am of opinion, that the right to redeem comes into existence when the mortgage money becomes due; and if that happened prior to the date on which the Transfer of Property Act became applicable, the law existing then regarding the right of redemption must apply; and the subsequent fact of S.60 becoming applicable cannot alter the nature of the right of redemption that already vested in the party.

(3.) The learned counsel of the appellant draws my attention to two or three decisions and contends that those decisions indicate a different position. His contention is that the cause of action in a redemption suit is a recurring one, so that the law applicable on the date when such cause of action is sought to be exercised should apply, and not the law at the time of the creation of the right of redemption. The decisions cited are the Full Bench decision of the Travancore Cochin High Court in Madhava Shenoi Narayana Shenoi v. Yesodabai ( 1954 KLT 530 ); the decision of the Privy Council in Raghunath Singh v. Mt. Hansraj Kunwar ( AIR 1934 PC 205 ); and the Federal Court ruling in Thota China Subba Rao v. Mattapalli Raju (AIR 1950 FC 1). These decisions lay down that the cause of action in a redemption suit, as in a partition suit, is a recurring one; and such cause of action will survive until the right of redemption is extinguished or a suit for redemption is barred by the law of limitation. This itself indicates that the right of redemption is something different from the cause of action for the suit for redemption. The right of redemption comes into existence when the mortgage money becomes due; and the cause of action for the exercise of that right arises when the mortgage money is paid or tendered. Therefore, these decisions, which lay down that the cause of action for a suit for redemption continues to exist until the right of redemption is extinguished, do not support the argument that the right of redemption is something procedural and its nature and extent will depend on the law prevailing at the time when the cause of action for the suit for redemption arises and not at the time when the right of redemption itself came into existence. According to me, the nature and extent of the right of redemption are those existing at the time of its birth or springing up, according to the law prevailing then; and they will not be altered by any subsequent change of law, unless the changed law itself is made retrospective.