RAGHAVAN NAIR Vs. DANIEL

JUDGEMENT

(1.) The only ground on which the petitioner sought the summary dismissal of the application for redemption of a possessory mortgage brought by the respondent under S.11 (2) of Kerala Act 31/58 was that the respondent had purchased the equity of redemption only after the commencement of the Act so that the respondent was not the mortgagor at the commencement. The objection seems to me untenable and was in my view rightly disallowed by the court below. Sub-s.(1) of S.11 provides that section applies to all subsisting possessory mortgages executed by an agriculturist before the commencement of the Act, and so long as those conditions are fulfilled, namely, that execution of the mortgage was before the commencement of the Act as it was in this case and that the executant was an agriculturist, I see nothing in the section or elsewhere in the Act to disentitle an assign from the mortgagor (whether before or after such commencement) from claiming the benefits of the section. S.7 of Madras Act IV of 1938 which says that all debts payable by an agriculturist at the commencement of that Act shall be scaled down in accordance with the provisions of the chapter in which it appears was construed by the Supreme Court in AIR 1953 S.C. 370 as making the benefits of that chapter available to the assigns and legal representatives of the original debtor, (See Para.12 at page 372 of the report). And although the definition in S.59 A of the Transfer of property Act is expressly confined to the chapter in which it appears it is well recognised that the words mortgagor and mortgagee are not confined to the original mortgagor and mortgagee but include persons deriving title from them respectively. So the argument that the respondent is not the mortgagor and is not therefore entitled to make a deposit and recover the mortgaged property in terms of sub-s.2 of S.11 of Act 31/58 fails.

(2.) The objection that an essential condition for the application of S.11 of Act 31/58 is that the original mortgagor must be an agriculturist and that the respondents application does not even contain an allegation to this effect is taken before me for the first time, and I am not prepared to countenance it here. The court below will no doubt consider that objection when it is taken, and, even if it is not taken will no doubt before allowing the respondents application satisfy itself that the requirements of S.11 are fulfilled. It is always open to it to allow an amendment of the pleadings on such terms as it thinks fit and it would not be proper for me when considering whether the only objection taken by the petitioner was rightly overruled by the court below, to dismiss the respondents application as the ground that an essential fact has not been averred therein.