KRISHNA KURUP Vs. MAMMAD

JUDGEMENT

(1.) This second appeal arises from a suit to recover by sale of the mortgaged property and from the 1 defendant personally Rs. 747-10-4, made up of Rs. 600, the principal due on a mortgage and Rs. 147-10-4, arrears of rent with interest thereon due under a contemporaneous counterpart of a lease (marupat) both executed by the 1 defendant to the plaintiffs predecessor-in-title. The defendants chief contentions were : (1) that the personal remedy was barred by limitation, which both the Lower Courts upheld and which is no longer in question, and (2) that the claim is barred by Order 2, Rule 2 of the Civil P. C., which both Courts overruled and which the defendants press again in this second appeal.

(2.) The mortgage, Ex. A, is a usufructuary mortgage, dated 6 March, 1915, for Rs. 600 of the mortgagor's kanom kuzhikanom interest in three gardens held under a jenmi. It provided for three years possession by the mortgagee during which he was to pay the jenmi's michavaram and obtain receipts and appropriate the balance of the income in lieu of interest at six per cent, on die principal. After the period of three years the mortgagee was to receive Rs. 600 and surrender the property. If the mortgagor failed to redeem at the end of the period, the mortgagee could continue in possession till he was paid off, paying the jenmi's michavaram and appropriating the balance for interest on the principal amount. If the mortgagee was unwilling to continue in possession as above, he was given the right to realise the mortgage amount by bringing to sale the mortgagor's rights over the property and the mortgagor bound himself to personally pay any balance left unrealised by the sale.

(3.) It will be noticed that there is no covenant by the mortgagor to pay interest as such either during the period of three years or after. The only method by which the mortgagee could get any interest is by taking possession and appropriating the balance of the income after payment of the jenmi's michavaram. By an arrangement very common in Malabar, where the cultivator especially of cocoanut gardens clings with great attachment to possession so as to keep the trees he has planted under his own eye and not hand them over to another whose interest in them is only temporary and mercenary, the mortgagor on the same day as the mortgage, 6 March, 1915, took back the possession given under the mortgage by Ex. B called a marupat which means counterpart of a lease. Ex. B states that the mortgagor has taken back the possession of the property to be held on pattom (lease) for three years. The lessee binds himself to hold this property for three years at an annual rent of Rs. 64 out of which he agreed to pay Rs. 28 to the jenmi as michavaram and hand over the receipts to the lessor and also pay the remainder of Rs. 36 to the lessor as interest on the mortgage amount and obtain the lessor's receipts for the payments. Ex. B also provides that if the rent remains in arrears it is to bear interest at 12 per cent, per annum and also that arrears of rent should be a charge on the equity of redemption.