MANUVEL SATHIANESAN Vs. MALLAN SANKARAN

JUDGEMENT

(1.) The plaintiff is the appellant. He sued for recovery of possession of property stated to have been taken on lease by the 1st defendant from one Easwara Pillai under Ext. A dated 4.9.1099. The property was demised under that deed on pattom and Kuzikanom, receiving a sum of fs. 450 from the 1st defendant. Defendants 2 to 8 were stated to be in possession under the 1st defendant. Easwara Pillais rights were sold in execution of the decree in O.S. No. 860 of 1105, obtained on the basis of a hypothecation bond executed by him. The plaintiff took an assignment of the auction purchasers rights and sued for recovery of possession claiming mesne profits at the rate of 128 fanams per annum. The rent stipulated in Ext. A was 74 1/2 fanams per annum. The plaintiff sought to set off the arrears of mesne profits against the premium of 450 fanams. The main contest was by the 4th defendant who contended that there was a later lease deed Ext. II executed by Easwara Pillai on 10.6.1105 whereunder a sum of 1200 fanams was received as premium. This sum is inclusive of the sum of 450 fanams under the earlier lease. He claimed the said sum of 1200 fanams as well as value of improvements amounting to Rs. 400. The Trial Court found that the plaintiff had obtained title to the property and that Ext. II was a valid transaction. The plaintiff was accordingly given a decree for recovery of Oodukur 1/3 share in the property on payment of a sum of 960 fanams arrived at by setting off the arrears of rent against the premium of 1200 fanams. The plaintiff was also directed to file a suit for partition of 1/3rd share and it was provided that the value of improvements would be decided in such a suit. Future profits was allowed at the rate of 80 fanams per annum from the date of deposit of 960 fanams. The plaintiff preferred an appeal to the District Court against this decree and the 4th defendant preferred a memorandum of cross objections relating to his costs. The lower appellate court upheld the finding of the Trial Court that Ext. II was valid and that the plaintiff was liable to pay a sum of fanams 960 before obtaining recovery of possession. It was however held that the plaintiff need not file a suit for partition. The value of improvements due to the defendant was fixed at 484 fanams and cash 12. The memorandum of cross objections was dismissed with costs and the plaintiff was directed to pay the costs of appeal incurred by the 1st defendant in the appellate court. The plaintiff has preferred this Second Appeal from the decree.

(2.) The main point for consideration is whether Ext. II is valid. It is not disputed that Ext. II was executed after the institution of the suit on the simple mortgage executed by Easwara Pillai. The courts below took the view that Easwara Pillai was competent to execute Ext. II, notwithstanding the simple mortgage and the suit based thereon. Reliance was placed on S.65A of the Transfer of Property Act which is extracted below:

(3.) This section was construed as empowering the mortgagor in possession to grant a lease of the property. In taking this view the courts below have ignored the provisions of S.52 of the Transfer of Property Act which deals with the principle of lis pendens. It is not disputed that Ext. II was executed during the pendency of the suit on the simple mortgage. If Ext. II is upheld, it amounts to a violation of S.52 of the Transfer of Property Act because the amount payable at the time of the redemption has been substantially increased by the deed. Mulla in his Commentary of the Transfer of Property Act states: