KALIYATHAN KRISHNAN Vs. AKKANISSERI MANIKKOTH KOLLARATH GOPALAKURUP

JUDGEMENT

(1.) The facts are stated in the lower Courts judgment and need not be restated.

(2.) O.S. No. 249 of 1928 was instituted by the plaintiff who was the assignee of a mortgage for recovery of possession of the property from the second defendant. The first defendant is the jenmi of the property. The second defendant resisted the suit on the ground that he has obtained a lease from the jenmi subsequent to the mortgage. O.S. No. 528 of 1928 was instituted by the second defendant in O.S. No. 249 of 1928, as the Plaintiff to redeem the property on the ground that as a lessee from the mortgagor he is entitled to redeem it. The question is whether he has got the right to redeem and can that right be set up in defence to the suit by the plaintiff for recovery of possession of the property.

(3.) Mr. Govinda Menon on behalf of the appellant second Defendant in O.S. No. 249 and Plaintiff in O.S. No. 528 of 1928 relied on the decision in Paya Matathil Appu V/s. Kovamel Amina (1895) I.L.R. 19 Mad. 151 : 5 M.L.J. 279 followed in Raghunandan Prasad V/s. Ambiga Singh (1907) I.L.R. 29 All. 679. In Paya Matathil Appu V/s. Kovamel Amina (1895) I.L.R. 19 Mad. 151 : 5 M.L.J. 279 was held that a lessee from an othidar after othi had been given could bring a suit for redemption. The ground on which it was based is this: that though the suit is by a lessee still the lease being by the mortgagor the lessee has an interest in the equity of redemption and this interest is sufficiently large to enable him to redeem the property. Having regard to this decision the question for consideration in this case is, when the lease was executed in favour of the second defendant by Ramotti's son who was then the owner of the property, was he in the position of the mortgagor or was he only in the position of a mere lessee as contended for by the respondent. The facts show that the property at that time was under a mortgage in favour of one Beechu and the mortgagor had taken the property back on lease. In order to bring the case within the scope of the decision in Paya Matathil Appu v. Kovamel Amina (1895) I.L.R. 19 Mad. 151 : 5 M.L.J. 279 Mr. Govinda Menon argues that the lease and the mortgage, being of even date must be treated as one and the same transaction and the mortgagor who has taken the lease back is exactly in the same position as an ordinary mortgagor is, and therefore when he gave the lease to the second defendant it was his right to redeem the property that was leased in his favour. Mr. Govinda Menon has cited a series of well-known cases of this and other Courts, namely in Madhwa Sidhanta Onahini Nidhi v. Venkataramanjulu Naidu (1903) I.L.R. 26 Mad. 662, Altaf Ali V/s. Lalta Prasad (1897) I.L.R. 19 All. 496 and Abdullah Khan V/s. Basharat Husain (1912) L.R. 40 I.A. 31 : I.L.R. 35 All. 48 : 25 M.L.J. 91 (P.C.) etc. to show that the transactions, mortgage and lease back, should be taken together when a question arises between the mortgagee and the mortgagor for determination of rights arising between them. But none of these cases lay down the proposition that the mortgagor should after the lease had been taken by him be considered to be in the position of one who has executed a simple mortgage. There is no authority so far as I can see for that position. The cases relied on do not support the contention of Mr. Govinda Menon. If the contention is accepted it will mean that the lease is altogether to be ignored. It cannot be disputed that after the termination of the lease the mortgagee is entitled to get back possession of the property from the mortgagor. The mortgagor cannot resist that suit by saying "having taken a lease I should be considered to be in the position of one who has executed a simple mortgage". If that is so, then it means that recognition has to be given to his lease and when he subsequently deals with the property, he must be considered in law to have dealt with it simply as a lessee and the person who gets a lease from him must be considered to be in the position of a sub-lessee and not in the position of one who has a mortgagor's interest entitling him to redeem the property. This I think is clear on principle and in my opinion no authority is needed for this position. The appellant's argument would result in this position namely that the lease back under which the mortgagor holds the property in his possession must be ignored altogether. This I think cannot be done. Even in Madhwa Sidhanta Onahini Nidhi V/s. Venkataramanjulu Naidu (1903) I.L.R. 26 Mad. 662 at 667 which was referred to, the learned Judges say "Taking the two together it is clear that the transaction was one entirely of mortgage with an express covenant to pay the principal and interest in instalments, and conferring a power on the mortgagee to take possession of the property mortgaged and apply the usufruct in the discharge of the interest and principal". The power of the mortgagee to take back the property which has come back on lease to the mortgagor cannot be disputed and has not been disputed even in these decisions to which reference has been made by Mr. Govinda Menon. I would, therefore, uphold the decision of the lower Courts on the ground that the second defendant is only a sub-lessee and as such, not having any interest in the property other than that of a sublessee he cannot resist the suit of the plaintiff-mortgagee by saying that he is entitled to redeem.