ISRAEL CHELLAPAN Vs. RAMAKRISHNA PILLAI

JUDGEMENT

(1.) PLAINTIFF had demised the suit properties to the defendants under an Otti and Kuzhikkanom deed dated 5. 5. 1117. On 5. 6. 1121 he instituted the present suit for redemption of the property on payment of the mortgage amount and value of improvements due to the defendants. Defendant I resisted the suit mainly on the ground that he was entitled to enjoy the property for a period of 12 years from the date of the document and as such the suit was premature. Other contentions wee also raised by him. The trial Court considered as a preliminary point the question whether the suit was premature and answered it in favour of the defendants. Accordingly the suit was dismissed. On appeal by the plaintiff, the lower appellate Court also concurred with the trial Court's finding that the suit was premature. PLAINTIFF has therefore come up in second appeal. Respondent 1 has filed an objection memorandum in respect of his costs of the trial Court.

(2.) THE plaint Otti and kuzhikkanom deed does not expressly provide for any definite period in favour of the mortgagees. But it is contended on behalf of the mortgagees that the tenure created under the document is an Otti and kuzhikkanom, the necessary incident following from it is that the mortgagee would be entitled to be in possession of the property for a period of at least 12 years. No doubt the law in Travancore has recognised such a right in favour of a kuzhikkanom tenant. THE rulings in Thachillathu veetil Sankaran Govinden v. Ramanathayamaya Thymookil Swamiar (7 TLR 440); chinnan Vyraven Assari v. Appoli Noris Pereira (30 TLR 258) and Devasia v. Kesavan (26 TLJ 383) are in support of this position. But it is clear from these rulings themselves that such a period of 12 years would be available to the mortgagee only in the absence of an express or implied contract to the contrary contained in the instrument itself. In the document construed in 30 t. L. R. 258 there was a provision enabling the mortgagee to demand the mortgage money three years after the date of the document. It was held that this provision imported a covenant on the strength of which the mortgagor could also seek to redeem the property after the expiry of the said period of three years. THE provision in the document which came up for consideration in 26 TLJ 383 was a general one and was to the effect that the mortgagee could demand the mortgage amount at any time. This provision was held to imply a reciprocal obligation also on the part of the mortgagee to surrender possession of the property on redemption being sought for by the mortgagor. THE document in the present case has to be examined in the light of these principles. As already stated no period is fixed under it by express terms. THE benefit of the 12 year period is claimed by the mortgagee merely as an incident following from the description of the property as an Otti and kuzhikkanom deed. Even though the document is thus described there is an express provision in it that whenever the property is redeemed on demand being made by the mortgagor the mortgagee will be paid the mortgage amount as well as the value of his improvements. This is the operative portion of the covenant between the parties to the document. Without importing something more into this covenant it cannot be construed to mean that the right to demand redemption expressly created under it could be exercised by the mortgagor only after the expiry of 12 years from the date of the document. THE straight and plain meaning of the covenant is that the mortgagor could demand redemption at any time. In view of such an express covenant contained in the document it cannot be said that the claim for redemption made in the present suit instituted four years after the date of the document is premature. It follows therefore that the suit has to be disposed of after considering the other issues involved in the case on their merits.