GILBERT Vs. VIVEKANANDAN

JUDGEMENT

(1.) THE plaintiff in a suit for redemption and recovery of possession is the appellant. THE case of the appellant is that the suit property consisting of three shop rooms and the fixtures had been allotted to him under Ext A5 which is a registered deed of partition dated 26-5-1982. Prior to Ext. A5, one of the co-owners of the property (whom we shall refer to as the first executant) and the defendant executed Ext. Al dated 15-1-1980 whereby the first executant borrowed a sum of Rs. 25. 000/- from the defendant and put the defendant into possession of the suit property specifically for a period of one year. Ext. Al which is styled as a deed of mortgage further provides that the defendant should pay to the first executant every month a sum of Rs. 2. 200/- as excess profit. THE defendant has the right to claim at the end of the period refund of the money borrowed from him by the first executant. THE borrowed amount is referred to the repayment of which, in the event of default by the first executant, is enforceable by the defendant by sale of Relying upon these terms, the plaintiff, subsequent to Ext. A5, instituted the suit for redemption of the mortgage. THE defendant, in answer to the plaint the property. THE document specifically says allegations, contended that Ext. AI did not evidence a mortgage, but only a lease and that he was, therefore, entitled to the protection of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the "rent Control act" ). THE defendant's contention was accepted by the court below.

(2.) COUNSEL for the appellant, Shri. Sivaswamy, submits that the nomenclature of Ext. Al, though not conclusive, is indeed a strong indication as to the nature of the transaction evidenced by that document. He further submits that the transaction satisfies the essential ingredients of an anomalous mortgage in so far as it contains the basic elements of a simple mortgage as well as a usufructuary mortgage. The first executant, counsel points out, has bound himself personally to pay the mortgage money He has expressly agreed that in the event of his failing to pay the money, according to the contract, the mortgagee would be entitled to cause the mortgaged property to be sold and the proceeds of sale to be applied in payment of the mortgage money. The mortgagee was put into possession of the suit property specifically for a period of one year. These elements, evident in the document, conclusively refer to the type of mortgage contemplated under S. 58 (g) of the transfer of Property Act, 1882. COUNSEL further refers to Ss. 76, 77 as well as s. 98 of that Act and submits that the monthly payment postulated under the document refers to a "fair occupation rent" as agreed to between the parties in lieu of any need to submit accounts by the mortgagee. These provisions of the contract, counsel says, leave no doubt that the parties intended to enter into a transaction of an anomalous mortgage.

(3.) IT may be, as suggested by Mrs. Dandapani, the defendant did not really intend to enter into a transaction of mortgage. May be that he intended to gain possession of the property as a lessee and secure for himself the protection of the Rent Control Act. IT may even be true that the first executant knew that the defendant intended to enjoy possession of the property, but apparently the first executant was not willing to enter into a transaction of lease for the reason that that would place him at a disadvantage. There is no case that the defendant is the victim of fraud, undue influence or the like, or that he was deceived, or that he did not understand the true meaning of the words used by the parties in the document. Apparently the parties dealt with each other at arms length, and of their own volition concluded the transaction, being well aware of the meaning of the words which they used in the document. When they used the language of mortgage, which they certainly did, as rightly submitted by the plaintiff's counsel, they knew its implications. Whether or not one of the parties intended or hoped to ultimately dodge his obligations as a mortgagee and claim statutory protection as a tenant, he cannot free himself of the legal effect of the words which be freely used in the knowledge of their import and meaning.