RUDRARU NARAYANAN Vs. MADHAVAN THAMPI

JUDGEMENT

(1.) THE 1st defendant is the appellant. THE properties described in the plaint schedule belonged to the defendants' Madhom which had given the same on Kanapattom to strangers. THE Madhom was entitled to michavarom and other dues from the Kanom tenants. THE right to get michavarom alone was mortgaged by the Madhom in the year 1098 to one Raman Pillai Kesava pillai and the mortgage right devolved on the 1st plaintiff by assignment. THE 2nd plaintiff is the son and heir of the 1st plaintiff who died after the institution of the suit. THE 1st plaintiff was getting michavarom from the tenants till the year 1117. After the Travancore Jenmi and Kudiyan Act was amended in 1108 the properties were assessed to jenmikaram in accordance with the provisions of the Act and from the year 1117 the Government collected the jenmikaram and paid the same to the defendants' Madhom. THE original plaintiff therefore sued for recovery of the mortgage money amounting to 8700 fanams and michavarom at the rate of 175 paras of paddy per annum from the year 1117 from the defendants' Madhom and also as a charge on the Jenmikarom due to the defendants. THE 1st defendant filed a written statement contesting the claim. He admitted the mortgage transaction and contended that on account of the change in the law, michavarom as such ceased to be payable by the Kanom tenants. As michavarom which was the subject-matter of the mortgage had ceased to exist it was contended that the plaintiff was entitled only to the mortgage money and interest at 6 per cent per annum. A plea of limitation was also set up regarding the claim for michavarom from 1117 On 5-8-195 4 the 1st defendant deposited a sum of Rs. 2100 towards the mortgage money and interest. THE 2nd plaintiff filed a replication reiterating his claim for michavaram after 1117 and further stating that the defendants had agreed to pay the same. THE court below held that although michavarom as such was not payable after 1117, the plaintiff was still entitled to get it. THE 2nd plaintiff was accordingly given a decree as prayed for.

(2.) THE only question for decision is whether the plaintiff is entitled to get michavarom at the rate of 175 paras of paddy per annum from 1117. Ext. A is the mortgage deed in question. It provided that the mortgagee was to recover michavarom from the tenants directly or through court. THE 2nd plaintiff and his predecessors were getting the same till the year 1117. In the meanwhile the Travancore Jenmi and Kudiyan Act was amended in the year 1108 and instead of the annual payment of michavarom and other periodically recurring payments due from Kanom tenant the amended Act provided that an annually recurring payment of Jenmikarom would be settled in respect of all jenmom properties outstanding on Kanom in lieu of michavarom and other dues. THE Act also made provision for enabling the Government to collect and pay such Jenmikarom. According to the amended provisions the Government was collecting Jenmikarom in respect of these properties & paying the same to the defendants' Madhom from the year 1117. THE plaintiff's case is that the annual michavarom forms part of Jenmikarom thus collected and paid and that he is entitled to recover the same from the defendant's Madhom who received it notwithstanding the mortgage. THE learned District Judge was of opinion that since michavarom formed an integral part of Jenmikarom the latter could be treated as the mortgaged property. He also took the view that the claim for recovery of michavarom from the defendants could be treated part of the settlement of accounts between" the mortgagor and the mortgagee. We are unable to accept either of these conclusions. It is true that michavarom also is taken into account in fixing the Jenmikarom of Jenmom properties coming within the purview of the Jenmi and Kudiyan Act But this does not mean that michavarom as such continued to exist after the date of the amending Act of 1108. THE analogy of a charge on mortgaged property fastening itself to the compensation money when such land is compulsorily acquired by the Government does not appear to be applicable to a case of this kind. THE property mortgaged was the michavarom payable by the kanom tenants and such michavarom formed one of the several items of payment due from kanom tenants. It cannot be said that michavarom was due from the tenants after the jenmikarom due on the property was settled. Even if it is assumed that the mortgaged property viz. the michavarom continued to exist after the settlement of Jenmikarom, it is not clear how the defendants can be made liable for the same as receipt of michavarom by the mortgagors would mean that they wrongfully deprived the mortgagee of possession of the mortgaged property. In such a case the mortgagee's claim would be one for recovery of the mortgage money & interest by way of damages. THE Transfer of Property Act as such was not law in Travancore at the time of the transaction and the State Courts always recognised the personal liability of mortgagors for payment of mortgage money when the mortgage was usufructuary in nature. Even if such personal liability did not exist, this would be a case falling under S. 68 of the Transfer of Property Act which in such circumstances enables the mortgagee to recover the mortgage money and interest. THE liability sought to be imposed on the defendants is not one arising under the mortgage in which case alone the question of accounting would arise. THE two decisions relied on by the learned judge do not in our opinion have any application to the facts of this case. In these circumstances it must be held that the plaintiff's remedy must be limited to recovery of mortgage money and interest thereon at the rate of 6 per cent per annum from 1117. THE decree of the court below must therefore be set aside.