KUTTI UMMA Vs. MADHAVA MENON

JUDGEMENT

(1.) Under the mortgage itself the plaintiff is not entitled to any interest. There is no covenant to pay it. It is only the principal which he can claim on the footing of that instrument. Any other claim must rest on the Verumpattam chit. In terms that document implies nothing more than a lease for one year with the addition of a clause giving if he lessor a charge for the rent. It is rent only which the lessor cam recover tinder that document. The question then is whether on the 7 August 1899 the lessor was in a position to claim the arrears of rent accruing since the 20 November 1887 when the document was executed. Except as regards the three years preceding the former date, the suit must be barred by limitation unless it can be shown that there was a charge so as to make Art. 132 of the schedule to the Indian Limitation Act apply or that there was a registered contract so as to make Art. 116 apply. Plainly there was no contract in writing registered to pay more than one year's rent, and it seems equally clear that no charge is given except in respect of that rent. The last clause is not a term of the lease as a, lease which can be deemed to be imported with the terms on which the lessee is allowed to hold over, and moreover it is not shown that the plaintiff assented to the defendants remaining in possession under the term of the pattom chit, A charge must be expressed in writing registered and cannot be raised by implication, it is argued on the strength of Irudad Hasan Bhan V/s. Radri Prasad I.L.R., 20 A. 407 that the two documents must be treated as one transaction and that therefore the rent payable under the pattom chit must be treated ns interest due by the mortgagor. The report shows that the two documents in that case were materially different from the documents in the present case and especially material is the circumstance in the present case that the lease is in terms a lease for one year only whereas in the Allahabad case it was carefully stipulated that the lessee should not surrender so long as the mortgage was subsisting.

(2.) Without questioning the doctrine laid down in that case, we do not think it can be applied to the case before us. We must hold that the plaintiff is entitled to the principal viz. Rs. 2,200 and arrears of rent for three years with interest thereon at, the rate stipulated.

(3.) The defendant has appealed only in respect of the difference between Rs. 3,784 and the amount decreed, namely, Rs. 2,363 by which amount accordingly the amount decreed must be reduced.