MATHEW JOSPEH Vs. VELOOKUNJU KUTTAN

JUDGEMENT

(1.) The appellant has a kanom right in the suit property under Ext. A which he got assigned. His assignor had mortgaged the kanom right to the 2nd defendant. The appellant instituted O. S. No. 177 of 1125 on the file of the Munsiff, Sherthallai, to redeem that mortgage and it has been decreed. During the pendency of that suit the 2nd defendant assigned her mortgage right to the plaintiff whereupon he was also made a party to the suit. Subsequently plaintiff got an assignment of the right of the jenmi (landlord) in the property and instituted this suit to discharge the kanom and to restrain execution of the redemption decree obtained by the appellant. The appellant contended that the kanom was irredeemable and that execution of his decree should not be restrained. The Munsiff held the kanom redeemable and the plaintiff the jenmi in possession of the property and therefore decreed discharge of the kanom. The Subordinate Judge on appeal confirmed that decree. Hence this second appeal.

(2.) Counsel for appellant contends that, even on the date of the suit, a jenmi was not entitled to recover property from his kanomdar on account of the prohibition in Travancore Cochin Act VIII of 1950. Though that Act was a temporary one the prohibition enacted therein was continued in the Kerala Act 1 of 1957 and has now been made permanent by the Kerala Land Reforms Act 1 of 1964. As jenmi the plaintiff is therefore not entitled to recover the property from the appellant. The effect of allowing this suit for discharge of the kanom is only to oust the kanomdar from the property which cannot be done in view of the statutory prohibition. What one cannot do directly one cannot be allowed to do indirectly too. The fact that the jenmi has secured possession of the property through assignment of a mortgage of the kanomdar would not better his position in this respect. His possession as mortgagee is liable to termination on redemption by the kanomdar. The Courts below thought that the mortgage right has merged in the jenmis right and therefore the respondent is a jenmi in possession. It is trite law that two interests in a property will not merge together when there is an intermediate interest outstanding. A merger can take place only when two interests come in close contact with each other and not when they stand apart with an intermediate interest in between. The plaintiff got possession from a mortgagee of the appellant. The possession of a mortgagee is in law that of the mortgagor: (Vide Padma Vithoba Chakkaya v. Mohamed Multani ( AIR 1963 SC 70 ). That possession is therefore the legal possession of the kanomdar and not of the jenmi. It cannot, in any view of the law, be ascribed to or tacked on to the jenmom right as against the kanomdar. It is subject to the redemption decree obtained by the appellant and has to yield to it. The decree of the Courts below has therefore to be discharged, this second appeal allowed and the suit dismissed with costs throughout. Decree accordingly.