KANNAN ALIAS RAMAN NAIR Vs. VALIA MELADETHIL ALIAS VADAKKE MELADETHIL KOTHAMMA NETHIAR AMMAS SON KOMBI ACHAN AND ORS.

JUDGEMENT

(1.) THIS is an appeal from the judgment in appeal of the Subordinate Judge of South Malabar at Palghat confirming the decree of the District Munsiff of Alathur in favour of the plaintiff in O.S. No. 90 of 1943. The first defendant in the suit is the appellant.

(2.) THE plaintiff had been the karnavan of the Kavasseri Vadakke Meledom. By the decree in O.S. No. 35 of 1917 in the Court of the District Munsiff of Alathur, he was removed from the management of the Edom, but the decree at the same time provided that the plaintiff was to be given 300 paras of paddy per annum by the Edom for his maintenance. The karnavan who was appointed in the plaintiff's place was removed by the decree in O.S. No. 14 of 1925 in the District Munsiff's Court of Alathur and defendants 2 and 3 in the present suit were appointed managers in his place. Subsequent to the decree in O.S. No. 35 of 1917 the managers mortgaged the properties of the Edom. On the 1st of November, 1927, they executed a usufructuary mortgage for Rs. 7,350 in favour of the first defendant, and then on the 24th of July, 1929, they executed a second mortgage of the properties for Rs. 4,450,also in favour of the first defendant. According to the terms of the first mortgage to the first defendant, Ex. D -4, dated 1st November, 1927, a sum of Rs. 6,728 -2 -3 was reserved out of the mortgage money for the payment by the first defendant of certain debts due by the Edom. Included in these debts was a sum of Rs. 1,225 which was due under a prior mortgage. The first defendant appears to have paid off the other debts but he did not discharge the amount due under the prior mortgage. Under the mortgage of 1st November 1927, the property had been leased back to the Edom. This arrangement proved unsatisfactory, and by the second mortgage of 24th July, 1929, Ex. D -5 the first defendant was put in possession of the properties subject to certain conditions which are set out in the mortgage deed. Out of the total pattom of 2,514 paras and 5 danglis of paddy the first defendant was to pay himself 1,242 paras of paddy in respect of interest on the mortgage money, 666 paras and 6 1/2 danglis was to be paid by him in respect of Government assessment and michavaram payable to the jenmi; 300 paras of paddy was to be paid to the plaintiff in the present suit in accordance with the terms of the decree in O.S. No. 35 of 1917, and the balance of 305 paras and 8 1/2 danglis of paddy was to be paid to the Edom. Finally, the deed recited that the mortgage amount was liable for arrears of purappad, interest, etc. As already stated the first defendant never did pay off the prior mortgage although the money was reserved with him and the prior mortgagee one Kunhi Raman Nair filed O.S. No. 79 of 1933 to enforce the mortgage. Defendants 2 and 3 were parties to the suit but allowed it to proceed ex parte against them. A decree for sale was passed. The mortgage money was not paid and the properties were brought to sale and purchased by the first defendant.

(3.) SUBSTANTIALLY the ground on which the learned District Munsiff decreed the suit and the learned Subordinate Judge confirmed his decree was that the first defendant had taken advantage of his position as mortgagee to gain an advantage for himself so that under the provisions of Section 90 of the Trusts Act he held the advantage for the benefit of the mortgagors, and without much further discussion they concluded from this finding that the two mortgages, Exs. D -4 and D -5, continued to subsist so that the plaintiff was entitled to recover the paddy expressed to be payable to him under the mortgage deed, Ex. D -5. In our opinion the essential questions in the case are whether the first defendant in failing to pay off the prior mortgage and then himself purchasing the property at the Court auction sale took advantage of his position within the meaning of Section 90; and if the answer to the first question is in the affirmative, what consequences ensue. It will however be convenient' to refer to one or two other points before the case is reduced to what we consider to be the essential questions at issue. With regard to the plea of res judicata, O.S. No. 79 of 1933 is no bar because the plaintiff was not a party to the suit and because in any case no question as between the first defendant and the managers of the Edom arose in the suit itself. Defendants 2 and 3 had no defence. They had either to pay the mortgage money or to allow a decree for sale to be passed. The other suit O.S. No. 303 of 1940 was, it is true, brought to recover purappad from the first defendant under the terms of the mortgage deed, Ex. D -5 and it was dismissed. The plaintiff was not a party to the suit but the third defendant was.. He was not however a party in his capacity as the manager of the Edom. but in his private capacity and the decree in the suit cannot bind the Edom. There was also some discussion in the lower Courts as to how far the mortgage deed, Ex. D -5 created a charge on the mortgage for the payment of the purappad and there has been some argument before us on the subject. If the deed gave the plaintiff a charge he would undoubtedly be entitled to enforce it despite the decree in O.S. No. 79 of 1933 and the sale in execution of that decree as he was not a party to that suit. The mortgage deed, Ex. D -5, it seems to us clear, while it gives a charge to the Edom in respect of the purappad payable under the deed does not give any charge to the plaintiff personally. It has been argued by Mr. Kuttikrishna Menon for the first defendant appellant that the charge is in any case only in respect of the purappad payable to the Edom, namely, 305 paras of paddy per annum. We do not accept this construction of the deed. The deed gives a charge in respect of the purappad and the 300 paras made payable to the plaintiff is part of the purappad payable to the Edom by the first defendant although diverted by the terms of the deed to the plaintiff. In any case if the mortgages subsist even after the sale to the first defendant, as there is a charge in respect of the purappad payable to the Edom, there can be no question of limitation.