EBRAHIM SOOPI Vs. MANIKKA

JUDGEMENT

(1.) The plaintiff in a suit for declaration that he is the owner of the plaint A schedule property and is entitled to redeem it on payment of the mortgage money and for a consequential injunction restraining the defendant from executing any document in respect of the equity of redemption over the property is the appellant in "this Second Appeal. The suit property originally belonged to one Korapalu. On her death the property devolved on her children. On 29th April 1,953 children of Korapalu executed Ext. A1 illidarwar mortgaging the property to the defendant and raised a sum of Rs. 5,000. The term of the illidarwar, which is understood to be a mortgage was 35 years. The property that was mortgaged was not an agricultural property. The mortgage property contained a building and a few coconut trees and was situate in the town of Kasaragod. It appears that there were disputes among the children of Korapalu regarding the division of the properties obtained by them in common including the property that was the subject-matter of the illidarwar. The parties appointed one Mr. O. Vijayan, Advocate, Kasaragod as Arbitrator. The Arbitrator rendered an award the registration copy of which is marked as Ext. A2 dated 6th August 1964. By that award the Arbitrator set apart various items of properties to the various children of Korapalu. As regards the property that was the subject-matter of Ext. A1 illidarwar the Arbitrator suggested that it would be more convenient to sell the equity of redemption and since it would be cumbersome for all the heirs of Korapalu to join the execution of such a sale of the equity of redemption three of the members referred to in the arbitration award, presumably the representatives of three branches were authorised to execute the assignment deed. The three persons so authorised were Kannappa, Laxmi and Korapalu D/o Undachi. The arbitration award passed by the arbitrator Mr. O. Vijayan was not made into a rule of court in terms of the Arbitration Act. Korapalu D/o Undachi purported to assign her interest in favour of one Nani under Ext. A4. Presumably acting on the basis of the provision in the arbitration award but without the junction of Kannappa or anyone representing him. Laxmi and Nani executed a sale deed Ext. A3 dated 18th April 1,968 purporting to convey to the present plaintiff the equity of redemption over the property covered by Ext. A1 illidarwar. It is on the strength of this assignment Ext. A3 that the plaintiff filed the present suit on 23rd July 1979 for declaration of his title over the equity of redemption and his entitlement to redeem Ext. Al illidarwar on payment of the mortgage money and for consequential reliefs. It can be noticed here that Ext. A1 illidarwar dated 29th April 1953 was for a period of 35 years and on the date of suit, the said term of the illidarwar had not expired. Presumably it may be for this reason that the plaintiff did not seek a redemption of the illidarwar or mortgage, when he filed the suit on 23rd July 1.979. The defendant (she died pending suit and his legal representatives were impleaded) denied the title of the plaintiff. The defendant contended that Ext. A2 award not being made into a rule of court was invalid in law and could not confer any right on the parties to that award as proposed in that award. The award was also incapable of conferring any right on Kannappa, Laxmi and Korapalu D/o Undachi to assign the equity of redemption over the property covered by Ext. A1 illidarwar. Ext. A4 sale by Korapalu to Nani was incapable of conferring any right on Nani over the equity of redemption and Ext. A3 sale deed executed by Laxmi and Nani in favour of the plaintiff could not also convey any valid title to the equity of redemption in the plaintiff. Thus the plaintiff was incompetent to sue on the basis of Ext. A3 assignment and hence was not entitled to a declaration of his title over the equity of redemption. It was also contended that without suing for redemption on the expiry of the term of the mortgage, the plaintiff would not be entitled to any relief. The plaintiff's right to relief was questioned. It was also contended that the transaction Ext. A1 illidarwar was not a usufructuary mortgage as defined in the Transfer of Property Act and hence it was a deemed tenancy protected by S.10 (v) of the Kerala Land Reforms Act. Consequently in any event the plaintiff would not be entitled to redeem Ext. A1. The Trial Court held that Ext. A3 assignment by two of the members of the family would confer a valid title over the properties in favour of the plaintiff but that the mortgage in question qualified for protection under S.10 (v) of the Kerala Land Reforms Act. That court also held that since the term of the mortgage had not expired, the suit for declaration of the right to redeem without including a prayer for redemption was maintainable. But in view of the finding that the defendant was entitled to the protection of S.10(v) of the Kerala Land Reforms Act the suit was dismissed. The plaintiff filed an appeal. The appellate court held that since Ext. A2 award was not made into a rule of court it could not be considered as the source of exclusive title of the various allottees thereunder and that the assignment Ext. A3 by two of the persons, one a party to the award and the other an assignee was invalid and could not confer any title to the equity of redemption on the plaintiff and hence the plaintiff was not entitled to seek relief on the strength of Ext. A3. Thus the title of the plaintiff was found against. That court also held, in agreement with the decision of the Trial Court that the transaction Ext. A1 qualified for protection under S.10(v) of the Kerala Land Reforms Act. Dealing with an argument that S.10(v) could not apply to the land in question, that court observed that merely because the suit property was situated in the town, it could not be said that it was a commercial site and that there was no bar for claiming, tenancy in respect of the suit property even though it is situated in Kasaragod town. It may be noted that the extent of the property was 33 cents. The appellate court thus dismissed the appeal confirming the dismissal of the suit. It is feeling aggrieved by this decree that the plaintiff has filed this Second Appeal. The substantial questions of law formulated in the Memorandum of Second Appeal and, on which notice was issued by this court took in the question whether Ext. A2 arbitration award is unenforceable in law, whether Ext. A4 assignment and the subsequent assignment Ext. A3 in favour of the plaintiff would not be sufficient to confer title on the plaintiff to the equity of redemption, whether the validity of Ext. A2 could be questioned by a mortgagee like the defendant and whether the finding by the appellate court that the transaction Ext. Al qualified for protection under S.10 (v) of the Kerala Land Reforms Act was correct.

(2.) It is not disputed that the arbitration award passed by Mr. O. Vijayan, Advocate registration copy of which is marked as Ext. A2 was not made into a rule of court. In Raman Nair v. Krishnan Nair 1976 KLT 175 following the decisions of the Madras High Court and the Andhra Pradesh High Court it was held that an award which had not been made subject of a Judgment was infructuous and unenforceable and was therefore incapable of extinguishing the earlier rights if any. It was pointed out that an award by an Arbitrator after the Arbitration Act, 1940 had come into force was but a stage in a scheme formulated in that Act for the adjudication of disputes by a private tribunal. Confirmation of that adjudication by the tribunal by a Judgment of court was essential in order to render it an effective adjudication of the dispute. It is seen from the decision in Raman Nair's case 1976 KLT 175 that this was also the view adopted by the High Courts of Bombay and Patna but the High Court of Rajasthan appears to have struck a different note. Going by the decision in Raman Nair it has to be held that since Ext. A2 award had not been made into a rule of court, the same is not capable of conferring exclusive title on the allottees referred to therein. Consequently any provision regarding the assignment of the equity of redemption would also be not valid or enforceable. Hence the sale by Korapalu in favour of Nani and the subsequent sale by Nani and Laxmi in favour of the plaintiff would be insufficient to confer on the plaintiff any exclusive title to the equity of redemption. The question whether the plaintiff can be said to have acquired the fractional interests of Laxmi and Korapalu through Nani in the equity of redemption need not be considered in the present litigation since the present suit is one for declaration of the exclusive title of the plaintiff over the equity of redemption based on Ext. A3 assignment and the suit is not one for redemption of the mortgage. Therefore the question whether as a part owner of the equity of redemption, the plaintiff is entitled to redeem the mortgage need not be decided in this litigation especially since this litigation was at a time when the term of the mortgage had not expired and the suit was clearly premature. Of course, as observed by this court in Sankara Pillai v. Ittiera 1958 KLT 220 to mitigate hardship and shorten litigation, it may be open to a court to take note of the subsequent events in granting reliefs to a litigant. In a case where the suit for redemption is filed before the expiry of the term and the term of the mortgage expires pending the suit a decree for redemption can be granted provided the substantive rights of parties are unaffected. But, considering the serious dispute on title raised and the other circumstances obtaining, I am not satisfied that it will be just to take note of the fact that the term of the mortgage has now expired pending the litigation and to grant relief to the plaintiff on that basis in the present suit itself.

(3.) The lower appellate court has referred to the relevant facts and had come to the conclusion that the assignors of Ext. A3 had no absolute title over the suit property and consequently they could not confer any absolute title on the plaintiff. The said finding is justified on the pleadings and the principle of law as indicated in Raman Nair's case 1976 KLT 175. The finding therefore that the plaintiff has failed to prove that he is the exclusive owner of the equity of redemption has therefore to be confirmed. The question whether he as an assignee of a share or shares in the equity of redemption is entitled to redeem the transaction Ext. Al is left open for decision in an appropriate suit for redemption that he may file and that aspect sought to be urged by counsel for the plaintiff in this Second Appeal is not considered or decided in the nature of the prayers made in the plaint. I must also notice that the plaintiff has claimed exclusive title to the equity of redemption and the other persons who can be coowners of the equity of redemption have not been impleaded in the suit.