UMADEVI ANTHARJ ANAM Vs. IYPE MATHEW

JUDGEMENT

(1.) The suit that gave rise to this Second Appeal was by the four respondents for mortgage money, on the strength of Ext. P 1, a mortgage dated the 15th Thulam, 1100, executed by defendants 1 and 2 and another, members of an illom, in favour of respondents 1 and 2 and of Varkey, the predecessor in interest of respondents 3 and 4, and for jenmikaram alleged to have been collected by the first defendant. The appellant third defendant, a member of the illom, contested the suit. By Ext. P 1, the money was secured on the jenmom right in a property of the illom which was outstanding on kanom with the mortgagees themselves and they were authorised to appropriate the michavaram and other dues payable under the kanom, towards interest on the mortgage amount. After the amendment of the Jenmi and Kudiyan Act in the year 1108, the right of the jenmi in the property became limited to the right to receive the jenmikaram thereon. In the year 1119, the State Government assumed the collection of the jenmikaram and paid it to the illom. Alleging that the mortgage security has been impaired, the suit was commenced on the 2nd Chingom, 1131. The first court held the suit to be barred by limitation and on appeal the Judge decreed the mortgage amount with interest, but not the jenmikaram sued for, which was received by the first defendant from the Government. In second appeal the question for decision is whether the suit was barred by limitation.

(2.) It was contended for the respondents, relying on the principle in Thommen Ouseph v. Varki Cheriyathu 5 TLJ 125, that Ext. P 1 is a usufructuary mortgage of the jenmom right of the illom in the property and under it the michavaram payable on account of the previous kanom was to be appropriated by the mortgagees. This, it was urged, is indicative of the passing of such possession as the transfer of the jenmom right was capable of. There is much to be said in favour of this contention, on the ruling cited above. Learned counsel for the respondents then argued that, upon dispossession of a part of the mortgaged property, by the assumption by the State Government of the collection of jenmikaram, a right had accrued to the respondents on the principles underlying S.68 of the Transfer of Property Act, to enforce payment, not only personally against the mortgagors but also to enforce the mortgage itself against the security so far as it was available and he relied on the observations of the Privy Council in Lal Namsingh Partab Bahadur Singh v. Mohammed Yacub Khan AIR 1929 PC 139 at p. 141 that "if the money has become payable under S.68 their Lordships are further of opinion that under S.67 a decree for sale can be made. It would indeed be a startling result of the legislation if in such a case as this, where a default has been made by the mortgagors of a kind which materially affects the mortgagee's security, there existed no remedy for the immediate enforcement of the mortgage". These observations lend support to the argument that even in a case falling under S.68, the mortgage or so much of it as remains, may be enforced under S.67 of the Transfer of Property Act. But I am of the opinion that in the light of the latest pronouncement of the Supreme Court in Monimala Devi v. Indu Bala Debya 1964 (1) SCWR 221 this argument cannot prevail. The Supreme Court has observed:-