KRISHNA KURUP GOPALA KURUP Vs. PADMANABHAN RAMAN

JUDGEMENT

(1.) The plaintiffs are the appellants. The suit was one for redemption of three out of twelve items of immovable properties mortgaged by the plaintiffs tarwad. The mortgage right vested in one Perumal Padmanabhan who sub-mortgaged all except one item viz., S. No. 1837 to Defendants 3 and 4. The plaintiffs acquired the equity of redemption of three items under a partition of their tarwad properties as well as by purchase from the members who obtained these. The person who got S. No. 1837 redeemed that item on payment of a sum of 1200 fanams as mortgage money. Alleging that the integrity of the mortgage had become broken up, the plaintiffs sued for redemption of the three items described in the plaint schedule. Defendants 1 and 2 who owned the mortgage right on the date of suit did not contest. Defendants 3 and 4 the sub mortgagees contended that the suit was bad being one for partial redemption. The Trial Court overruled this plea and gave the plaintiffs a decree for redemption of the three items on payment of the proportionate mortgage amount. On appeal by defendants 3 and 4 the learned Subordinate Judge of Attingal reversed the decree and dismissed the suit holding that the case was governed by S.60 of the Transfer of Property Act. It was held that the only case in which partial redemption could be allowed was one where the mortgagee acquired in whole or in part the share of a mortgagor. The plaintiffs have preferred this Second Appeal from the decree of the lower appellate court dismissing the suit.

(2.) The only point arising for decision is whether a partial redemption can be allowed. Learned counsel for the appellant urged that S.60 of the Transfer of Property Act was not applicable to the case as the mortgages sought to be redeemed came into existence long before the Act became applicable to this Stated. Though some of the principles of the Transfer of Property Act were followed in the State of Travancore, the Act as much became applicable only in April 1951. S.2 of the Transfer of Property Act provides that nothing contained in the Act should be deemed to affect any right or liability arising out of a legal relation constituted before the Act came into force or any relief in respect of any such right or liability. It was only by the amendment of 1929 which introduced the word only in the last clause of S.60 that the exceptions to the rule against partial redemption became restricted to a case where the mortgagee acquired in whole or in part the share of a mortgagor. Not being bound by the Transfer of Property Act as such, Courts in Travancore did not recognise or apply the modification made in the pre existing law by the amendment of 1929. Ponnan Rowel Nadan v. Muthukutti Nadan Subbaian Nadan (24 TLJ 322) and Chenthammal Lekshmi Amma v. Narayana Pillai Govinda Pillai (1947 TLR 593) are two of the reported decisions of the Travancore High Court recognising three exceptions to the rule against partial redemption. These are:

(3.) Before concluding this judgment it may be pointed out that the appellant had another contention, namely, that the objection against partial redemption was one available only to the mortgagees and not to sub-mortgagees. In the view that I take on the main point I do not consider it necessary to decide this question in this case.