Judges : KUNHI RAMAN,SANKARAN
Sree Varaha Devaswom - Appellant
Versus
Rukkia Bai - Respondent
Case No : A. S. No. 16 of 1124
Decided On : 07/25/1950
Advocates Appeared :
For the Appellant: T. M. Mahalingom Iyer; K.V. Rajagopala Shenoi, Advocates. For the Respondent: T. S. Venkiteswara Iyer; Easa Ahmed Sait, Advocate.
Mortgage - Redemption of Properties - Cochin Agriculturists' Relief Act - S. 8, S. 9 - Ext. IV, Ext. V - The court discussed the rights and liabilities of the parties in accordance with the principles of the common Law which governed mortgage transactions in the State prior to the passing of the Transfer of Property Act. The court held that the arrears of pattom due to the mortgagee Devaswom have not been extinguished and continued to be a charge on the plaint properties. The court also ruled that the plaintiffs are bound to pay off the arrears of pattom along with the mortgage amount before redeeming the properties from the first defendant Devaswom. The court further held that the mortgagee cannot be made liable for the mesne profits claimed by the plaintiffs due to the absence of a proper and valid tender of the redemption price by the plaintiffs.
Fact of the Case:
The Devaswom sought recovery of the mortgage amount and arrears of pattom due to it from the plaint items. The plaintiffs sought redemption of the mortgage and recovery of possession of the properties with mesne profits. The court found that the plaintiffs are bound to pay off the arrears of pattom along with the mortgage amount before redeeming the properties from the first defendant Devaswom. The court also ruled that the mortgagee cannot be made liable for the mesne profits claimed by the plaintiffs.
Finding of the Court:
The court found that the arrears of pattom due to the mortgagee Devaswom have not been extinguished and continued to be a charge on the plaint properties. The court ruled that the plaintiffs are bound to pay off the arrears of pattom along with the mortgage amount before redeeming the properties from the first defendant Devaswom. The court further held that the mortgagee cannot be made liable for the mesne profits claimed by the plaintiffs due to the absence of a proper and valid tender of the redemption price by the plaintiffs.
Issues: The main issue was whether the plaintiffs are bound to pay the arrears of pattom along with the mortgage amount before redeeming the properties from the first defendant Devaswom. Another issue was whether the mortgagee can be made liable for the mesne profits claimed by the plaintiffs.
Ratio Decidendi: The court held that the arrears of pattom due to the mortgagee Devaswom have not been extinguished and continued to be a charge on the plaint properties. The court ruled that the plaintiffs are bound to pay off the arrears of pattom along with the mortgage amount before redeeming the properties from the first defendant Devaswom. The court further held that the mortgagee cannot be made liable for the mesne profits claimed by the plaintiffs due to the absence of a proper and valid tender of the redemption price by the plaintiffs.
Final Decision: The appeal was partly allowed, and the lower court's decree was modified. The plaintiffs were directed to pay the arrears of pattom along with the mortgage amount before redeeming the properties from the first defendant Devaswom. The court also set aside the lower court's decree making the first defendant liable for the mesne profits and costs.
1. This appeal arises from the decision of the Anjikaimal District Court in O.S. No. 122 of 1121. The Sree Varaha Devaswom, Azheekkal, who is the first defendant in the case, is the appellant. Defendants 10 to 15, to whom the plaint properties belonged originally, had mortgaged them under Ext. IV dated 12.10. 11100 in favour of the first defendant Devaswom for a consideration of Rs. 12,800/- and directed the mortgagee to appropriate the income of the properties towards the interest due on the mortgage amount. All the same, the mortgagors retained possession of the properties by executing Ext. V lease deed of even date in favour of the mortgagee. The lease amount payable under Ext. V was expressly made a charge on the equity of redemption of the properties. Subsequently on 4.4.1108, the properties were surrendered to the Devaswom under Ext. III release deed, executed by the mortgagors-lessees, wherein they undertook to pay off the arrears of pattom amounting to Rs. 6599-7-6 and interest thereon together with the mortgage amount and to close the transaction without any delay. Out of the plaint items, which thus came into possession of the Devaswom, items 1 to 7,10,11 and 13 to 17 were again leased by the Devaswom on 14.2.1109 to one Thankamma, who is the wife of the 13th defendant and the mother of the 2nd plaintiff. It is stated that such a lease arrangement was brought into existence at the instance of the 15th defendant. Item 8 was already outstanding on lease with one Thomman Cheekku, whose legal representatives are defendants 3 to 9. Items 9 and 12 were enjoyed by the Devaswom directly. In the meanwhile, the equity of redemption of the plaint items, except items 10 and 11, was sold in court auction in O.S No. 288 of 1101 on the file of the Cochin District Munsiff's Court and sale certificate was granted in favour of one Krishna Pillai and others. The rights over items 6, 7, 8,12 and 13, which these persons acquired under this sale certificate, were again sold in court auction in O.S. No. 167/1107 and were purchased by one Kurien. The present second plaintiff acquired the rights under these two sale certificates and has thus become the owner of the items already mentioned. From him the first plaintiff has obtained a mortgage in respect of items 1 to 11 and 15 to 17. These two plaintiffs wanted to close the transaction under Ext. IV mortgage in favour of the Devaswom. But the parties could not come to an agreement as to the amount payable to the Devaswom in full satisfaction of its claims. The Devaswom accordingly instituted O.S.No.126/1120 on the file of the Anjikaimal District Court for recovery of the mortgage amount as well as the arrears of pattom due to it from the plaint items. Even though the arrears due to the Devaswom amounted to Rs. 6599-7-6 together with future interest thereon, the whole of such amount could not be recovered by the Devaswom because of the provisions of the Cochin Agriculturists' Relief Act (Act 18 of 1114). By S. 8 of the said Act, the whole of the interest due from an agriculturist under an outstanding debt up to 1.1.1107, was wiped off. The Explanation of S. 9 of the Act is to the effect that interest referred to in Ss. 8 and 9 includes pattom payable by the mortgagor to the mortgagee on a lease back of the mortgaged properties. Consistent with these provisions, the Devaswom could claim, out of the arrears of pattom mentioned in Ext. III release deed, a sum of Rs. 968-8-6 only, representing the arrears for the period subsequent to 1.1.1107 together with 6 per cent interest on the same, the total amount coming to Rs. 1264-9-3. The claim put forward in O.S.No.126/1120 was for recovery of the mortgage amount of Rs. 12,800/- and also of Rs. 1264-9-3 by way of arrears of pattom. Plaintiffs 1 and 2 in the present suit were defendants 14 and 13 in O.S. No. 126/1120. They resisted the claim of the Devaswom in respect of the arrears of pattom and interest there on, and contended that the rig
Login now and unlock free premium legal research
Login to SupremeToday AI and access free legal analysis, AI highlights, and smart tools.
Login
now!
India’s Legal research and Law Firm App, Download now!
Copyright © 2023 Vikas Info Solution Pvt Ltd. All Rights Reserved.