THOMMEN JOSEPH Vs. OUSEPH CHACKO

JUDGEMENT

(1.) The appellant - who is the same in these two appeals - in conjunction with his wife, had executed a mortgage, Ext. D1 dated April 21,1953, of the suit properties, two items, one a paddy flat and the other a small plot with buildings, for Rs. 25,500 to the respondent. The same day the respondent leased out the paddy flat to the appellant alone under Ext. D2. The appellant contends that the second item also had been orally leased out to him by the respondent and that therefore he is entitled to the benefit of S.11(6) of the Debt Relief Act. For an order allowing him to discharge the mortgage by payment in instalments under S.4 of the Debt Relief Act he filed O. P. No. 20 of 1959; and for a declaration that the arrears of rent deposited in Court by the tenants of the buildings to the credit of suits instituted by the respondent have to be adjusted by the respondent towards such instalments he filed O. S. No. 58 of 1961; and both have been dismissed by the Subordinate Judge who found that the paddy flat only has been leased back and that the mortgagee himself was in possession of the mortgaged buildings. A. S. No. 222 is from the order in the O. P., and A. S. No. 511 is from the decree in the O. S.

(2.) Ext. D3 dated April 22, 1953; Ext. D14 dated September 23, 1954; Ext. D15 dated February 1, 1955; Ext. D13 dated July 1, 1956 & Ext. D12 dated May 4, 1957, are rent deeds executed by tenants of the mortgaged buildings in favour of the respondent. It was on the basis of those rent deeds that he had obtained decrees and compelled the arrears of rent to be deposited in Court. The appellant who claims the benefit of these decrees cannot deny the truth of the rent deeds. There is no record in evidence that he has realised rent from any of the tenants of the buildings subsequent to the date of the mortgage till the institution of the O. P. by him. The finding of the Subordinate Judge that the buildings were in the possession of the respondent since the date of the mortgage appears to us right. It must then follow that only part of the mortgaged property has been the subject of the lease back. That in such a case S.11(6) cannot be attracted has been ruled by Raman Nayar, J. in Kunhi Raman Ambalavasi v. Lekshmi Devi Ammal 1960 KLT 180 . That identity of parties to the transactions of mortgage and of lease back is another condition for that Section to apply has also been ruled by Vaidialingam, J. in Chacko v. Mathai 1964 KLT 956 . That condition also is lacking here.