KURIEN Vs. LEKSHMI AMMA KAMALAKSHI AMMA

JUDGEMENT

(1.) THE question referred to the Full Bench is clear from the following Order of Reference. "the 2nd defendant in O. S. No. 492 of 1121, on the file of the Thiruvalla Munsiff's Court, is the revision petitioner and this revision is directed against the finding of the lower court on issue No. 1, that the suit is not premature. THE suit was for redemption of a mortgage of 1082. THE 2nd defendant contended inter alia, that the suit was premature, as the mortgage deed provided for a renewal, on the expiry of 36 years fixed in it, the lower court, raised Issue No. 1, regarding this contention and decided that issue, in favour of the plaintiff. Hence this revision petition. " Mr. T. K. Joseph, appearing for the petitioner, produced a copy of the mortgage deed of 1082. On going through that document, I find, that the contention of the 2nd defendant, that there is provision for renewal in the document, is true. From the document, it is evident, that property was, already outstanding on mortgage. THE mortgagee, was directed to redeem the previous mortgage, and enjoy the property, for a period of 36 years. After the expiry of that period, there is a clear provision, for renewal of the mortgage, in that document. This is what the relevant portion in the document, says: THEre is no ambiguity in the language used by the parties, and therefore, it is clear that there is provision for renewal, after the expiry of 36 years. Reliance is placed, for the counter-petitioner, on a previous portion of the document and it runs thus: It is not clear who is referred to as. THE reference could not be to the mortgagee, because, in the subsequent portion, he is referred. But the portion already extracted, makes it clear, beyond and doubt, that there is provision for renewal. It is contended for the counter-petitioner, that the option regarding renewal, rests with the mortgagor and not with the mortgagee and that therefore, the fact, that the mortgagor has thought fit to sue for redemption, shows that he is not willing to give the renewal. From the wording of the document, no question of option arises. THEre is a clear statement to the effect that the mortgagor would give a renewal, after the expiry of the period. Reliance is placed, for the counter-petitioner, on the decision in kunjan v. Parameswaran (20 T. L. J. 873) for the position, that the option rests with the mortgagor. It is seen from the report, that the conclusion was reached on an interpretation of the document in that case. THE decision in Pariethu v. Panicker (1 T. L. J. 147) in favour of the mortgagee, also rests upon the interpretation of the document, in that case. THE decision in Kurien v. Karthiyayani (1946 T. L. R. 174), in favour of the mortgagee, also rests upon the interpretation of the clause of the document in that case. As we pointed out already, there is no question of option in this case, and the language used, show beyond any doubt, that the mortgagor was bound to execute the renewal. It is next argued, for the counter-petitioner, relying on the decision in Chacko v. Ouseph (24 T. L. J. 420), which followed the previous ruling of this Court in Kuruvila Varki v. Mathew Acharu (3 S. g. D. 161) that the mortgagee is not entitled to the renewal. No doubt this ruling supports the counter-petitioner, but I find from the reports of the cases, in Pariethu v. Panicker (1 T. L. J. 147), Krishnan v. Kumaran (2 T. L. J. 145), Kurien v. Karithiyayani (1946 T. L. R. 174) that the documents in these cases, did not contain any term, for which the renewal is claimed and yet the courts allowed renewal. It may be noted, that though the expression'kanam' is used in the 1 t. L. J. and 2 T. L. J. cases, the documents were construed as embodying a redeemable mortgage, and therefore, no great weight need be attached to that expression. Since the point involved is an important one, and since I entertain doubts, I think it proper, to refer this matter to a Full Bench, for an authoritative decision. THE question to be decided, is, whether a mortgagee is not entitled to renewal, if the term for which the renewal is claimed, is uncertain. Without deciding this question, it is not possible to find, whether the suit is premature or not. I would therefore refer this question to a Full bench, for an authoritative decision. THE matter may be placed before a Full bench, and a final decision arrived at on the point, involved in the c. R. P. in the light of the opinion of the Full Bench".

(2.) THE suit is to redeem a mortgage executed on 10th karkadagam 1082 for a term of 36 years. THE suit was filed in the year 1121 after the expiry of the term. THE mortgagee contended that under the terms of the mortgage he was entitled to a renewal for another term of either 36 years or at least of 12 years. On this contention the issue was raised whether the suit was not premature and the court below held that as the option to renew was with the mortgagor, it was open to him to bring the suit as soon as the original term under the mortgage expired. This revision petition has been filed by the mortgagee against the finding on this issue which was decided as a preliminary issue.

(3.) WHEN in a kanom deed the mortgagor said "i shall either grant you a renewal of the deed, or redeem the property on payment of the kanom", it was held in Narayanan Kunjan Menon v. Narayanan parameswaran 20 TLJ 873 that the option was to be exercised by the landlord and not the tenant. In Chacko v. Ouseph (4) 24 T. L. J. 420 where a mortgage provided a renewal at the option of the mortgagee and no term for the renewed mortgage was mentioned, it was held that the mortgagee could not claim a renewal. The question that arose for decision in Kuriyan v. Karthiyayani (5) 1946 TLR 174 was one of limitation. There a mortgage deed provided that on the expiry of the term on 14th Chingam 1056 the mortgagee will have the option either to surrender the property on receipt of the mortgage amount and value of improvements or take a renewal. The mortgage was neither redeemed nor a renewal was taken on the expiry of the term. Ultimately when a suit for redemption was brought, the mortgagee contended that the suit filed more than fifty years after 14th Chingam 1056 was barred by limitation. It was held that the mortgagee should be deemed to have exercised his option by holding possession for a renewed term of twelve years and no actual renewal deed was necessary to effectuate the option. Limitation therefore was held to run from 14th Chingom 1068 only.