CHAPPAN NAIR Vs. PARIYAIKUTTY

JUDGEMENT

(1.) This second appeal arises out of a suit for redemption of a possessory mortgage on payment of the mortgage amount and value of improvements and for recovery of arrears of purapad: stipulated, in the mortgage deed. Plaintiffs are the appellants. Only two questions were pressed at the time of the hearing, and they were: whether the plaintiffs are entitled to redeem and recover possession of plaint item 5 to 7 the redemption of waich has been refused by both the courts below, and whether, over and above the mortgage money, the amount due to the mortgagees under a decree which they have obtained against the mortgagors for arrears of rent in respect of the mortgaged properties, should also be paid by the plaintiffs before redemption and recovery of possession of the properties can be allowed On the second question the decision of the first court was in the plaintiffs favour, namely, that the plaintiffs need pay only the mortgage money and the value of improvements for redemption of the mortgage and that the mortgagees .were not entitled to claim consolidation, and the decision of the lower appellate court was against them, namely, that they should pay also the amount under the decree for arrears of rent before redemption could be allowed.

(2.) So far as the first question is concerned, the appeal is devoid of any merit. Ext. B11 is a copy of the plaint mortgage deed. It is dated 15-10-1902. Seven items of properties were mortgaged by Ext. B11, and there was a provision in the deed for payment of a purapad of Rs 32-8- 0 per year by the mortgagees, to the mortgagors. After taking the mortgage, on the same date, the mortgagees executed a lease back, Ext. B 12, in favour of the mortgagors stipulating for an annual rent of Rs. 77-8-0 out of which a sum of Rs. 320-8-0 was to be appropriated by the mortgagors-lessees On account of the purapad payable to them and the balance amount of 45/- was to be paid by them to the mortgagees. For arrears of rent due under Ext. B 12 from 1930 to 1942 and also for recovery of possession of the leased properties on account of the lessees failure to pay the rent the mortgagees-lessors brought a suit, O. S. No. 249 of 1942, against the mortgagors-lessees and certain persons who were then in possession of the mortgaged items 5 to 7. The persons who were in possession of items 5 to 7 are the persons impleaded as defendants 9 to 13 in the present suit. All the parties in the present suit were parties to O. S. No. 24-9 of 1942. Exts. B9 and B10 are copies of judgments of the Trial Court and the appellate court in that suit, and Exts. A4 and B16 are copies of the decrees of the Trial Court and the appellate court. Present defendants 9 to 13 contended in O. S. No. 249 of 1942 that they were in possession of items 5 to 7 under an independent title, that the mortgagors and the mortgagees had no right to those properties and that the mortgage had not taken effect in respect of them. This contention was upheld and O. S. No. 249 of 1942 was dismissed so far as items 5 to 7 were concerned and decreed only in respect of items 1 to 4. The decision in that suit would constitute res judicata in this suit so far as the claim in respect of plaint items 5 to 7 is concerned, and therefore, the courts below were perfectly right in refusing to allow the plaintiffs claim for redemption of those items.

(3.) So far as the second question is concerned it is necessary to state a few more facts. After the decree in O. S. No. 249 of 1942 the mortgagees admittedly obtained delivery of possession of plaint items 1 to 4 in execution of that decree, and they are now in possession of those items. In this court there was a dispute between the parties as to whether the decree for arrears of rent in O. S. No. 249 of 1942 has been executed by the decree holders therein and the arrears decreed or any part of it realised. According to the appellants, that decree was executed by the decree holders and part of the arrears decreed has also been realised. According to the respondents, the decree for arrears has not been executed and no part of the arrears has been realised. There is no distinct finding by either of the courts below on this matter, but the lower appellate court seems to have proceeded on the assumption that the decree for arrears has been executed in part and a portion of the arrears decreed has been realised. The decree of the lower appellate court is that the plaintiffs should pay the mortgage amount and value of improvements and also the arrears of the decree-debt remaining unsatisfied in O.S.No. 249 of 1942 and arrears of purapad at the rate of Rs. 32-8-0 per year from the date of delivery in O.S. No. 249 of 1942 till the date of redemption. The appellants contention in regard to this matter is that the mortgage under Ext. B11 and the charge created on the properties under Ext. B12 lease back are two separate and distinct transactions and that, under S.61 of the T.P. Act, they are entitled to redeem the mortgage separately without payment of the arrears of rent for which the mortgagees have a charge on the properties under Ext. B12. Having regard to the terms of the two documents, I have no doubt that Exts. B11 and B12 cannot be treated as constituting a single simple mortgage and that what has been created by them is an usufructuary or possessory mortgage under Ext. B11 and a separate simple mortgage under Ext. B12 for rent. Nevertheless, S.61 of the T. P. Act cannot apply to this case, for both Exts. B11 & B12 were executed in 1902 whereas S.61, as it stands at present, was introduced into the Transfer of Property Act only in 1929. It is not disputed that, as the law stood before 1929, and if the suit also was filed before 1929, the mortgagees would have had a valid claim for consolidation of the arrears of rent with the mortgage amount. As pointed out in Nachappa Goundan v. Samiappa Goundan AIR 1947 Mad. 18 the right to claim consolidation, which is a valuable right, accrues when the mortgages become combined in the person claiming consolidation, and such a right which accured before the date of the amendment of S.61 (Transfer of Property Act) cannot be taken away by the amendment which has no retrospective operation. In the circumstances, on the second point the decision of the lower appellate court has to be preferred to that of the first court. The lower appellate courts decree is, therefore, confirmed and this second appeal is dismissed with costs.