ANGAPPA GOUNDER Vs. SIVANMALAI GOUNDER

JUDGEMENT

(1.) IN view of conflict of decisions noted by Swamikannu, J. , regarding the validity of pre-existing mortgages on the passing of the Madras minor INams (Abolition and Conversion into Ryotwari) Act 30 of 1963, hereinafter referred to as the Act, this matter is referred to this Bench for authoritative pronouncement.

(2.) THE facts of the case are briefly as follows: On 4. 8. 1943 one Karuppanna Gounder and his son Palanisamy Gounder usufructuarily mortgaged the suit properties in favour of one Muthusamy Gounder and three others. In lieu of interest, the mortgagees were allowed to enjoy the land for a term of five years. THE mortgagees agreed to receive the mortgage amount and deliver possession of the properties to the mortgagor after the expiry of the term. While so, one Valliammal, the wife of Palanisamy Gounder of sangarupalayam, obtained an assignment of the abovesaid mortgage on 7. 6. 1946. She had in turn assigned the mortgage in favour of the appellant, the first defendant in suit, on 12. 6. 1959. Accordingly, the appellant is in possession of the mortgaged properties. Palanisamy Gounder, one of the mortgagors sold his share to the 7th respondent herein (5th defendant in the suit) and hence the 7th respondent herein is entitled to a half share in the mortgage properties. THE other mortgagor Karuppanna Gounder died in 1957 leaving one Karuppayee and chellammal as his heirs. Karup-payee died leaving her husband, the first respondent herein and her sons, the second and third respondents herein.

(3.) BEFORE proceeding to consider this contention we will do well to understand the significance of the relevant enactments. The Madras estates (Abolition and Conversion into Ryotwari) Act, 1948 and the Bihar Land reforms Act (Act 30 of 1950) were enacted to abolish the estates and put an end to the rights of the zamindar or the landholder who previously enjoyed the right to collect the melwaram from the ryoti lands. The right to collect the melwaram or the assessment was the exclusive right of the sovereign. When the british occupied this country, they had to rely upon a chosen few for the purpose of collecting the Melwaram and to sustain their dominion over this country. They conceded the right to collect the melwaram or the assessment to chosen individuals in return for an annual payment or peiskush. It is this class of middlemen the above said two enactments sought to abolish. The land holders had a saleable interest in the estates which enabled them to create mortgages over the same. Once the right to collect the assessment is put an end to by law, and when such a right is vested with the Government then nothing survives except the compensation computed under the provisions of the Act. Hence the Supreme Court in the case reported in Shivshankar v. Baikunth, A. I. R. 1969 S. C. 971, held that after the vesting in the Government of an estate under the Bihar Land Reforms Act the rights of the mortgagee is extinguished.