K GNANADESIKAM PILLAI Vs. ANTONY BENATHU BOOPALARAYAR

JUDGEMENT

(1.) This appeal arises out of a suit filed by the plaintiff for the recovery of a Bum of Rs. 8,981- 14-8 alleged to be due under a registered lease-deed dated 19 January 1911 and executed by defendant 1, under which there was an agreement to pay an annual rent of Rs. 368-8-0. Properties comprised in the lease-deed were mortgaged by defendant 1 with possession to the plaintiff under a mortgage-deed dated 18 January 1911 for Rs. 2,500. The mortgage-deed and the lease-deed have been filed as Exs. A and E respectively. The suit is for the recovery of the arrears of rent due under the aforesaid lease-deed and the charge created under Ex. E is also sought to be enforced. According to the contention of defendant 1, the usufructuary mortgage was for a term of two years and the lease granted by the mortgagee was also for the same period of two years, and that at the end of that term, he surrendered possession to the plaintiff, as he did not pay either the arrears of rent or the mortgage amount. His case is that the plaintiff himself was in actual enjoyment of the properties since then. There is also the plea of limitation. One of the questions for consideration is whether the lease in question evidenced by Ex. E must be deemed to have been granted for a term of years only or for an indefinite term. On this point, we have to construe the terms of Exs. A and E. It is clear that the usufructuary mortgage deed and the lease deed are parts of the same transaction. Ex. A recites in clear terms that the other right is to be for a period of two years, on the expiry of which term defendant 1 should redeem the mortgage by paying a sum of Rs. 2,500. Instead of actually taking possession of the mortgaged pro-parties, the plaintiff granted a lease of the same to the mortgagor under Ex. E. In this lease deed, the cent fixed for each year is Rs. 368- 8-0 which defendant 1 as lessee had to pay up to the time of redeeming the othi.

(2.) He agreed to pay rent every year by 19 January. Then there is the collateral agreement by way of mortgage, under which the properties mentioned in the schedule were offered as security for the payment of rent due under the lease deed. Ex. E is virtually a combination of a lease and a mortgage. It is true that, in the lease deed, there is no specific mention of the term of the lease, but we have to read both these documents together in order to under, stand the true intention of the parties. When the parties chose to fix a period of two years for the enjoyment of the properties by the mortgagee and for the redemption of the mortgage by the mortgagor, it is not unlikely that the lease was also intended to be for the same period as that of the mortgage. It seems to us that the term in the lease I deed, that the rent is payable up to the time of the redemption of the othi I should be understood as the time contemplated or fixed for redemption in the mortgage deed itself. Some argument was based upon the circumstance that the lease deed bears a stamp of Rs. 4. It is urged that if the lease is for a term of two years only, a stamp of Rs. 2 would be sufficient, but if it is a lease for an indefinite term, then a stamp for Rs. 4 would be necessary as per Clauses 3 and 4 of Art. 35, Stamp Act. In this view, the learned Subordinate Judge treats the lease evidenced by Ex. E as one for an indefinite term. But we think that that is not the necessary inference to be drawn from the fact that the lease deed bears stamp of Rs. 4 as we have already said that Ex. E is a combination of a lease and a mortgage.

(3.) If the lease is for two years, the total rent payable would be between Rs. 700 and 800. If for the payment of this sum a collateral security of immovable property is also given, the document has to be viewed as a simple mortgage. When it is to be taken both as a lease and as a mortgage, it must bear the Stamp which is leviable in the case of a mortgage, which requires a higher stamp duty. It is possible that a stamp of Rs. 4 was used as, the document evidenced at simple mortgage also as stated above, Furthermore, even if there is some ambiguity as to the period of the lease really intended by the parties in the recitals in Ex. E, the evidence given by the plaintiff himself leaves no room to doubt what the real intention of the parties was. Even in his chief-examination, he admits that 2 years term was inserted to fit in with the period of the othi. And in his cross-examination, he would say that defendant 1 asked for the lease to last for the term of the othi, and that the talk was for 2 years from the beginning. He denies that there was any agreement for one year's lease.