Pre-existing Mortgage debts not wiped out by the Act.

Sengottuvelan, J.

1. In view of conflict of decisions noted by Swamikannu, J., regarding the validity of pre-existing mortgages on the passing of the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act 30 of 1963, hereinafter referred to as the Act, this matter is referred to this Bench for authoritative pronouncement.

2. The facts of the case are briefly as follows: On 4.8.1943 one Karuppanna Gounder and his son Palanisamy Gounder usufructuarily mortgaged the suit properties in favour of one Muthusamy Gounder and three others. In lieu of interest, the mortgagees were allowed to enjoy the land for a term of five years. The mortgagees agreed to receive the mortgage amount and deliver possession of the properties to the mortgagor after the expiry of the term. While so, one Valliammal, the wife of Palanisamy Gounder of Sangarupalayam, obtained an assignment of the abovesaid mortgage on 7.6.1946. She had in turn assigned the mortgage in favour of the appellant, the first defendant in suit, on 12.6.1959. Accordingly, the appellant is in possession of the mortgaged properties. Palanisamy Gounder, one of the mortgagors sold his share to the 7th respondent herein (5th defendant in the suit) and hence the 7th respondent herein is entitled to a half share in the mortgage properties. The other mortgagor Karuppanna Gounder died in 1957 leaving one Karuppayee and Chellammal as his heirs. Karuppayee died leaving her husband, the first respondent herein and her sons, the second and third respondents herein.

3. On the date of the suit the appellant was entitled to one-fourth share in the mortgage properties and the respondents 4 to 6 were entitled to another one-fourth share and the 7th respondent was entitled to half share. The respondents 1 to 3 herein, as the successors-in-interest of the mortgagors filed the suit O.S.No. 130 of 1975 on the file of the District Munsif of Dharapuram, for redemption of the mortgage properties and consequently for possession and mesne profits. The appellant herein, viz., the first defendant, raised a contention that in view of passing of Act 30 of 1963 the mortgage itself is wiped out and the respondents 1 to 3 have no right to file the suit for redemption. A contention was also raised regarding the alleged improvements made by the appellant. The further contention raised was with reference to the non-joinder of one Palanisamy Gounder, the son of the original mortgagor. The trial court negatived the contentions of the appellant and passed preliminary decree for redemption as prayed for also relegated the claim for mesne profits to proceedings under Order 20, Rule 12, C.P.C. As against the judgment of the trial court, the appellant herein filed an appeal in A.S.No. 123 of 1978 on the file of the District Judge of Coimbatore (East) at Erode and the learned District Judge also concurred with the findings of the trial Court and dismissed the appeal. This second appeal is filed challenging the legality and correctness of the judgment of the District Judge in A.S.No. 123 of 1978. When the matter was originally taken up before Swamikkannu J., he noticed conflict of decisions regarding the questions to be decided and hence the matter is referred to this Bench of this Court for an authoritative pronouncement.

4. The point that arise for decision is whether the provisions contained in Act 30 of 1963 will result in wiping out the suit mortgage and thereby render the suit as one not maintainable in law.

5. At the outset it has to be stated that the properties in question are minor inams. The Inam tenure had been abolished by the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act 30 of 1963 and converted into Ryotwari tenure. According to Section 3 of the Act all minor inams vest in the Government from the appointed date and any rights and privileges which may have accrued in the minor inam to any person before the appointed day against the inamdar shall cease and determine and shall not be enf