MEENAKSHI AMMA Vs. KIZHAKKE VALATH NARAYANI

JUDGEMENT

(1.) THESE are two connected appeals arising from the decrees and judgment of the learned Subordinate Judge of Ottapalam in A. S. Nos. 97 and 98 of 1950, modifying the decrees and judgment of the learned District Munsif of Chowghat in o. S. Nos. 299 and 127 of 1949.

(2.) THE facts are :-- Ex. B-2 is a copy of the pattamchit executed by the defendants' predecessor Itteeri in favour of the then karnavan of the plaintiffs' family and a junior member. That document recites that the properties were already in the possession of Itteeri as a lessee and that he was taking verumpattam lease with the liability to pay an annual rent of 45 1/2 paras of paddy. Ex. B-3 is a possessory mortgage deed executed by the karnavan and a junior member of the plaintiffs' tarwad to Itteeri's son Velu in respect of the properties. It recites that the properties were possessorily mortgaged to Velu for a sum of Rs. 250. It also recites that the properties were in the possession of Velu as a tenant. The document finally states that out of the pattam of 45 paras and 3 3/4 narayams of paddy, 35 paras might be appropriated by Velu towards the Interest on the mortgage amount and that the balance of 10 paras 3 3/4 narayams should be paid to the mortgagors. The term of the mortgage was one year. After that period the mortgagee was to surrender Possession of the properties. Provision was also made for setting off the amount due from the mortgagee against the mortgage amount at the time when possession had to be surrendered. These are undisputed facts. On the mortgagors seeking to redeem the property, because by operation of Madras Act IV of 1938 as subsequently modified by Act xxiii of 1948, the mortgage had become extinguished, they were met with the contention that delivery of possession could not be given because the fact of a tenant's taking a mortgage of land comprised in his holding from his landlord does not of itself extinguish the tenancy by merging the rights of the tenant In those of the mortgagee and the effect of such a mortgage on the tenant's rights would be merely that 'they would be in abeyance and that when the landlord redeemed the mortgage, the parties would revert to their former position, and the land-lord would, not be entitled to get possession of the land except by ejecting the tenant in due course of law. In other words, it is clear that the mortgagors want to evict these defendants and take Possession of the property and the defendants are setting up fixity of tenure in order to defeat that claim of the plaintiffs.

(3.) BOTH the lower Courts accepted this contention of the defendants which is based upon the judgment of the Allahabad High Court in Kallu v. Diwan ILR 24 All 487 (A ).