KUTTY NARAYANAN Vs. N R KRISHNAN

JUDGEMENT

(1.) The additional 9th defendant who has acquired the rights of the 2nd defendant in the case, is the appellant. The suit property was obtained by defendants 1 and 2 under the kanapattom deed Ext. I of the year 1099. While they were in possession and enjoyment of the property on the strength of Ext. I, the jenmi of the property executed a mortgage in respect of this property in favour of the 3rd defendant in the year 1111 with directions to redeem Ext. I and to recover possession from defendants 1 and 2. The 3rd defendant assigned his mortgage right in favour of the 4th defendant. This right was subsequently acquired by defendants 5 and 6. But none of these defendants took any step to redeem Ext. I up to the year 1122. In the meanwhile, the mortgagors right of equity of redemption of the property was acquired by the plaintiff in this suit (O.S. No. 895/1121 on the file of the Sherthallai District Munsiffs Court) under a court sale. His suit was for redeeming Ext. I and also the subsequent mortgage and for recovery of possession of the property on payment of the kanartham, the mortgage amount and the value of improvements to such of the defendants who may be found to be entitled to the same. The suit was decreed in his favour. When the decree holder attempted to get delivery of possession of the property, the additional 9th defendant filed an objection petition contending that as the assignee of the 2nd defendant he is in possession of the 2nd defendants half share of the property on the strength of Ext. I, the other half share which belonged to the deceased 1st defendant being in the joint possession of the 8th defendant as the heir of the 1st defendant. It was also contended that the kanapattom evidenced by Ext. I comes within the purview of Act VIII of 1950 and that therefore the decree holder is not entitled to evict the 9th defendant in disregard of the protection afforded by the provisions of that Act. This contention was repelled by both the lower courts. Hence the second appeal by the 9th defendant.

(2.) The position that the kanapattom created under Ext. I comes within the purview of Act VIII of 1950, is not disputed. The first courts order shows that this position was admitted on behalf of the decree holder. All the same, the 9th defendants objection was repelled mainly on the ground that the assignment taken in the names of defendants 5 and 6 of the rights under the subsequent mortgage of the year 1111, was benami for defendants 1 and 2 and that by virtue of such assignment the rights under Ext. I have been extinguished, the same having merged in the mortgage. On behalf of the decree holder respondent it is contended that in O.S. No. 102/1122 of the Sherthallai Munsiffs Court and to which all these persons were parties, it was definitely found that the assignment taken by defendants 5 and 6 was benami for defendants 1 and 2 and that the 9th defendant appellant is not entitled to put forward any claim against that finding. In answer to this contention the appellants learned counsel pointed out that the finding on the question of benami was not upheld in the final judgment passed in that case by the High Court. O.S. 102/1122 was a suit instituted by the present defendants 5 and 6 as assignees of the mortgage right and the claim in that suit was for redeeming Ext. I and for recovery of possession of the property from defendants 1 and 2. From the final judgment passed by the High Court in that case and which was read over to us, it is seen that the High Court confirmed the decree dismissing that suit on the sole ground that the mortgagee having failed to exercise the right of redeeming Ext. I within a reasonable time from the date of the mortgage, that right was lost to the mortgagee. Consistent with such a view taken by the High Court, no opinion was recorded on the question that the assignment taken by the plaintiffs in that case was benami for defendants 1 and 2. Thus it cannot be said that there has been any final and conclusive decision in that case on the question of the benami nature of the assignment taken by defendants 5 and 6. Apart from this aspect of the case, the fact remains that their attempt to recover possession of the property from defendants 1 and 2 on the strength of the mortgage of the year 1111 was unsuccessful. Even if the assignment taken by the defendants 5 and 6 was benami for defendants 1 and 2, such an assignment by itself will not show that the kanapattom arrangement under Ext. I was extinguished by having become merged in the mortgage. The taking of a mortgage by the lessee in respect of the property in his possession cannot always be taken to amount to an implied surrender of his leasehold right as contemplated by Cl. (f) of S.111 of the Transfer of Property Act. The question whether there has been such an implied surrender has to be gathered from the intention of the parties as disclosed by the attendant circumstances.

(3.) The lower court has held that the objection raised by the 9th defendant on the strength of Act VIII of 1950 is barred by the rule of constructive res judicata on account of the failure of his assignor, the 2nd defendant, to raise such a plea when notice of execution of the decree was served on him at an earlier stage. In the 9th defendants objection petition he has stated that no notice about the execution of the decree had been served on the 2nd defendant. Without investigating into this matter and ascertaining whether such notice had been served on the 2nd defendant and whether any order for execution of the decree had been passed previously, no finding could be recorded on the plea of constructive res judicata raised on behalf of the decree holder. For such investigation and findings the case has to be remanded to the lower court.