LEKSHMI Vs. RAMAN VELU

JUDGEMENT

(1.) DEFENDANTS 1 to 3 are the appellants. The suit is for redemption of a mortgage, Ext. A, dated 26. 12. 1080 and a puravaippa, Ext. E, dated 30. 8. 1090. The plaint property belonged to Kadangassery Mana. The Mana executed the mortgage and puravaippa in favour of one Manickan Raman, the predecessor-ininterest of the defendants. The mortgage and puravaippa comprised two items of properties. Of these, item No. 1 was outstanding on a lease granted by the mana to Raman's father, Manickan. Ext. I dated 30. 5. 1054 is the lease deed. Item No. 2 was outstanding on a lease granted by the mana to one makkotha. In 1081 Makkotha attorned to Raman in respect of Item No. 2. Subsequently, Raman assigned the mortgage and puravaippa rights in favour of makkotha as regards item No. 2 receiving proportionate mortgage and puravaippa amounts. The mana assigned the equity of redemption over both the items in favour of the plaintiff under Ext. B dated 31. 1. 1120. Makkotha surrendered his rights under the mortgage and puravaippa in respect of item No. 2 in favour of the plaintiff, and the plaintiff got possession of that item. The suit was instituted by the plaintiff for redeeming item No. 1 on payment of proportionate mortgage and puravaipa amounts.

(2.) DEFENDANTS 1 to 3 contested the suit. Their main contention was that the plaintiff was not entitled to get khas possession of the property on redemption of the mortgage and puravaipa. According to them, the lease (Ext. I) was not extinguished with the execution of the mortgage (Ext. A) and what was mortgaged by the Mana was only the lessor's right in the property, the lease being kept intact. It was, therefore, contended that the plaintiff was not entitled to get khas possession of the property on redemption of the mortgage and puravaipa.

(3.) LEARNED Counsel for the appellants relied on the decision of the Cochin High Court in Pappachan v. Ouseph (37 Cochin 524) in which Koshi, J. , (as he then was) following the decision of the Allahabad High court in Kallu v. Diwan (24 All. 487), observed as follows: "if a landlord mortgages his interest to the tenant or the tenant mortgages his interest to the landlord, redemption of that mortgage would relegate the parties to the position they occupied before the mortgage came into being". That was a case in which the lessee mortgaged his lease-hold interest in the property to the land-lord and took the property back on lease. The question whether the execution of the mortgage amounted to an implied surrender of the lease was not considered in that case.