Chaithu Mohamed and Another vs Ennasi and Others

This second appeal arises from the judgment and decree of the District Judge of Kanya-kumari in Appeal Suit No. 339 of 1960, which, in turn arose from the judgment and decree of the Subordinate Judge of Padmanabhapuram in Original Suit No. 4 of 1960, which was a suit for redemption of mortgage filed by the Appellants, the heirs of the original mortgagor. The relevant facts leading to the present litigation may be briefly stated.

The original predecessor-in-title of the Plaintiffs executed a mortgage in respect of the A schedule lands to Ibrahim Pillai and Hussain Pillai and put them in possession on 24-9-1071 M.E. (5th May 1896). Ibrahim Pillai and Hussain Pillai assigned their mortgage right to one Kama Pillai Meeran Pillai on 24-10-1072 M.E. (5th June 1897). Kama Pillai Meeran Pillai assigned his right under the mortgage to Defendants 1 to 4 and the ancestors of Defendants 5 to 21 on 7-5-1078 (22nd February 1902) under exhibit A-3. They in turn assigned their rights to the 22nd Defendant, who is the chief contesting Defendant, i.e., the Roman Catholic Church of Vallavila, under exhibit A-6, dated 2-7-1080 M.E. (1905 A.D.). The Plaintiffs'' predecessors-in-title filed Original Suit No. 475 of 1121 M.E. (1946 A.D.), for the redemption of the mortgage of 1071 M.E. (1896 A.D.) impleading the mortgagees as Defendants 1 and 2 and the Vallavila Church as the 10th Defendant. In that suit, the Church contended that they were not in possession of the mortgaged property under the assignees of the mortgagees. That suit was dismissed on the ground that the church authorities were not in possession of the mortgaged property under the assignees of the mortgagees. The Plaintiffs'' predecessors-in-title preferred an appeal (Appeal Suit No. 909 of 1952) to the District Court, Nagercoil, which was dismissed. Finally, when the matter was carried to the Travan-core-Cochin High Court in second appeal (Second Appeal No. 173 of 1954) the dismissal of the suit was confirmed. Subsequently the Plaintiffs'' predecessors-in-title filed Original Suit No. 71 of 1957 for redemption of the B schedule trees which also suffered the same fate both in the trial Court and the appellate Court. Thus the matter has become final in respect of the mortgage rights over A and B schedule properties as far as the Plaintiffs'' predecessors-in-title are concerned.

Now the Plaintiffs who claim to be the heirs of the original mortgagor filed the present suit for redemption of the mortgage over A schedule property and for recovery of A and B schedule properties from the Defendants with mesne profits. Defendants 1 to 21 contended that they were not in possession of the mortgaged properties, that they were not aware of any mortgage created over the suit properties, that there was no relationship of mortgagor and mortgagee between them and the Plaintiffs and that in any event the suit was barred by res judicata and under Order II, Rule 2, CPC . The 22nd Defendant repeated the old contentions urged by them in the previous proceedings and further contended that they were in possession of the suit property for nearly 100 years and thus they have perfected title by adverse possession, that the Plaintiffs had no right to sue, that the deed of 1071 M.E. was really a kuzhikanam deed and not a mortgage deed, that the suit was barred by limitation and adverse possession and that it was also barred by res judicata by reason of the decisions in Original Suit No. 475 of 1121 M.E. and Original Suit No. 71 of 1957. On these pleadings, the parties went to trial before the learned Subordinate Judge of Padmanabhapuram.

In the trial Court, various issues were framed, the important being whether the mortgaged properties belonged to the predecessor-in-title of the Plaintiffs, whether the Plaintiffs were entitled to redeem, whether the 22nd Defendant was in possession of the mortgaged property and whether the suit was barred by res judicata by virtue of the decisions in Original Suit No. 475 of 1121 M.E. and Original Suit No. 71 of 1957. The learned Subordinate Judge, after considering the various documentary and oral evidence, found that the Plaintiffs'' predecessor-in-title had title to the suit property, that the assignments of the mortgage rights to the various Defendants in succession were proved, that whenever there was an assignment of the mortgage rights the successive mortgagees were put in possession and that equally the 22nd Defendant must have taken possession only from the assignees of the original mortgagees and thus they were in possession of the suit property. He, however, held that the suit was barred by res judicata by virtue of the earlier decisions. The suit was, therefore, dismissed. Naturally, the Plaintiffs preferred an appeal to the District Court of Kanyakumari. The only point that was considered there was whether the present suit was barred by virtue of the decision in Original Suit No. 475 of 1121 M.E. and Original Suit No. 71 of 1957 on the file of the District Munsif''s Court, Kuzhithurai. The learned District Judge came to the conclusion that the 22nd Defendant (Roman Catholic Church) had no independent title to the suit property. He observed that once it was found that the Church had no independent right to the suit property it was immaterial whether they took possession of the suit property in 1109 or 1078 M.E., that the further question would be whether they acquired any right to the suit properties under the assignee-mortgagees or whether their possession was adverse to the assignee-mortgagees and that in either view the Plaintiffs'' title to recover the suit property, if they were otherwise entitled to, would not be affected. In that view, the learned District Judge considered only the question of res judicata. He came to the conclusion that the present suit was not different from the earlier suits Original Suit Nos. 475 of 1121 M.E. and 71 of 1957. He observed that, as the present suit must be held to be one for redemption as against the 22nd Defendant, notwithstanding the allegations made in the plaint, it must be held that it was barred by res judicata by virtue of the decision in the earlier suit. The learned Distriot Judge also observed that if any finding had to be given on the issue whether the 22nd Defendant was in possession of the plaint items under the mortgage of 1071 M.E., it must be against the 22nd Defendant as exhibit A-6 and exhibit A-7 showed that the Church could have obtained possession of A schedule property only from the assignees of the mortgage of the year 1071. The Plaintiffs have now come to this Court in second appeal.

Now, it is common ground that the Courts below have concurrently found that the 22nd Defendant has no title to the suit property and that it is in possession of the mortgaged property in pursuance of the mortgage rights assigned to it by the previous assignees, Defendants 5 to 21. These findings have now become final and I cannot interfere with them. The Plaintiffs have established that they have got title to the property and that the 22nd Defendant is now in possession of the property. Therefore, if the Plaintiffs could establish that the present suit is not barred by res judicata by reason of the decisions in the earlier suits, they would be entitled to redeem the mortgaged property now in the possession of the 22nd Defendant. It is also admitted that the Plaintiffs are within the period of limitation for redeeming the mortgaged property. The only point, therefore, for consideration is whether the suit for redemption is barred by res judicata, by virtue of the decisions rendered in similar suits for redemption filed by the predecessors-in-title of the Plaintiffs.

In this connection, it is necessary to note the stand taken by the 22nd Defendant in the earlier suits. There it was found that the Church was not claiming under the mortgagees. There was no relationship of mortgagor and mortgagee between them and therefore, the suit for redemption was not maintainable. But in the present proceeding initiated by the Appellants, they have filed exhibit A-6, dated 2-7-1080 M.E. (1905), wherein the parishioners have executed a registered lease deed in favour of the Vicar of the Vallavila Church, that is the 22nd Defendant. Herein they have mentioned the earlier mortgage and the assignment deeds with all the relevant details. They handed over the documents of title in respect of the suit property to the 22nd Defendant. By virtue of these documents, the Church took possession of the suit property and managed the same by leasing it to various tenants. Thus, it is seen from these documents that the Church had taken possession of the A schedule properties only as transferees from the parishioners, who took the assignment under the original of exhibit A-3, dated 7-5-1078. Thus, as far as the 22nd Defendant is concerned, in the previous proceeding the finding was given that the Church was not in possession of the mortgaged property as assignees of the mortgagee. It did not claim title under the mortgagee. There was no relationship of mortgagor and mortgagee. But in the present proceeding, there is a finding given that the 22nd Defendant is an assignee from the previous mortgagee. It is in possession of the mortgaged property. There is the relationship of mortgagor and mortgagee. However, the suit has been held to be not maintainable by reason of res judicata.

This is a suit for redemption. The relevant provision that can be found in the Transfer of Property Act is Section 60. The right to redeem is an incident of a subsisting mortgage and is inseparable so that the right is co-extensive with the mortgage itself. This right subsists until it is properly and effectively extinguished, and the extinguishment of the right of redemption can only take place by act of parties or by decree of Court. The right of redemption is thus a statutory right. It confers upon the mortgagor the right to redeem at any time, if the principal money had become payable. This right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose. It should be strictly complied with. It is not merely a contractual right; it is a legal right given to him by the statute creating interest in the land. It is the only right retained either by the original mortgagor or his heirs, administrators and executors. This right is known in the English law as the equity of redemption. This right of redemption is so zealously guarded by law for the benefit of the mortgagor that he himself is not allowed to fetter it. This valuable right is not controlled by any contract to the contrary. The principle on which the doctrine of clog on redemption is based has its origin in the law of England, but it has been recognised by the British Indian Legislature, and although the English law as such is not applicable to the country, the law enacted in India has to be enforced. The nature of this right of redemption has been explained by LORD MACNAGHTEN in Noakes and Co. Limited v. Rice 1902 A.C. 24 30:

Redemption is of the very nature and essence of a mortgage... It is inherent in the thing itself .... equity will not permit any devise or contrivance designed or calculated to prevent or impede redemption. It follows as a necessary consequence that, when the money secured by a mortgage of land is paid off, the land itself and the owner of the land in the use and enjoyment of it must be free and unfettered to all intents and purposes as if the land had never been made the subject of the security.

This equity of redemption is very zealously guarded.

There shall not be any clog on the equity of redemption.

When this case went on appeal, the House of Lords affirmed this decision. In Fairclough v. Swan Brewery Co. Limited 1912 A.C. 565, LORD MACNAGHTEN once again observed at page 570:

...it is now firmly established by the House of Lords that the old rule still prevails and that equity will not permit any device or contrivance being part of the mortgage transaction or contemporaneous with it, to prevent or impede redemption.

Therefore, the right of redemption can only be extinguished by release or surrender or some similar transaction. The right of redemption is a continuing right, unless the right to redeem is extinguished by act of parties, for example, by conveying the equity of redemption to the mortgagee or by decree of Court, in which case it must be extinguished by an order of Court expressly directed to the power of extinguishment. In other words, unless a decree absolute was passed by Court, the mortgagor''s right of redemption could not be said to have terminated. The actual extinction of the right of redeem is to be effected only by a final decree. It is clear, therefore, unless a decree has been passed under Order XXXIV Sub-clause (3) of Rule 8, it cannot be said that the mortgage debt was discharged or the right of redemption was actually lost or extinguished.

In this background, I have to consider, when the previous suit for redemption was dismissed, whether a second suit for redemption is barred by res judicata. The Courts of Allahabad, Bombay and Lahore held that a second suit was maintainable, while the Courts of Madras and Calcutta held the contrary view, namely that the second suit for redemption was not maintainable. This conflict of views was set at rest by the Privy Council in Raghunath Singh v. Hansraj Kunwar ILR (1934) All. 561.. The relevant facts are, there was a mortgage, dated 22nd June 1864. In the year 1892, the mortgagor instituted a suit for redemption alleging that nothing was due under the securities, and claiming to be put into possession of the property. The Court passed a decree in favour of the mortgagor that he was entitled to a decree for possession by redemption of the mortgage on payment of Rs. 4,000 by 15th November 1896. The mortgagor did not comply with the order of the Court. In the year 1924, that is, after more than thirty years, the representative and heir of the mortgagor commenced the second litigation for redemption. He alleged that the entire amount that was ordered to be paid by the mortgagor was satisfied, and he claiming possession of the mortgaged property. The suit was resisted that it was not maintainable and barred by res judicata. Their Lordships of the Judicial Committee considered the relevant Sections 60, 92 and 93, and observed as follows at page 569:

The right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose, and strictly complied with. In the present case, the only basis for the claim that the right to redeem has been extinguished is Section 60; but in their Lordships'' view the old decree cannot properly be construed as doing that which it does not purport to do, viz., as extinguishing the right to redeem.

Finally, their Lordships held that the right to redeem had never been extinguished and that that suit for redemption was maintainable.

The principle laid down in the Privy Council decision was attempted to be distinguished in Raju v. Raghavayya ILR [1945] Mad. 803. In that case, in 1914, the mortgagor acting for himself and as the guardian of his undivided minor son granted a mortgage of about 50 acres of inam lands, to secure a sum of Rs. 30,000 lent by the mortgagees. In 1929, the mortgagor filed a suit for redemption, as a counter move to the mortgagees'' suit to eject the lessees of the mortgaged property. In 1932, a compromise was arrived at, whereby the mortgagor agreed to convey the suit lands to the mortgagees and in pursuance of that compromise, the suit was allowed to be dismissed. Subsequently, the mortgagor resiled from the compromise and revived the old claim for redemption by instituting another suit in 1938. He also claimed recovery of possession. On these facts, PATANJALI SASTEI, J., delivering the judgment of the division Bench, observed at page 811:

This is no authority for the proposition that, when once a suit to redeem a mortgage has been withdrawn or abandoned and consequently dismissed, a fresh suit for redemption is maintainable, notwithstanding the provisions of Order XXIII Rule 1, Sub-rule (3); or in other words, that section of the 60, Transfer or Property Act, overrides the provisions of Order XXIII Rule 1. Their Lordships did not have to consider the effect of a withdrawal of a redemption action in view of Order XXIII Rule 1, and their decision lends no support, in our opinion, to the view that suits for redemption are not affected by the bar enacted in that provision.

When this decision was taken in appeal to the Federal Court in Subba Rao v. Raju AIR 1950 F.C. 1, the decision of this Court was reversed. Their Lordships of the Federal Court reviewed the entire case law including the opinion of the Judicial Committee in Raghunath Singh v. Hansraj Kunwar ILR (1934) All. 561 and observed at page 6 thus:

The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage itself subsists. As held by the Privy Council in Eaghunath Singh''s Case ILR (1934) All. 561 the right of redemption can be extinguished as provided in Section 60 T. P. Act, and when it is alleged to have been extinguished by the decree, the decree should run strictly in accordance with the form prescribed for the purpose. Unless the equity of redemption is so extinguished, a second suit for redemption by the mortgagor, if filed within the period of limitation, is not therefore, barred. The Board expressly held that if the Appellants failed to establish that the old decree extinguished the right to redeem, there was no ground for saying that the old decree operated as res judicata and the Courts were prevented from trying the second suit u/s 11, CPC They, therefore, held that the right to redeem was not extinguished by the procedural provisions contained in the Code of Civil Procedure.

In this, the Federal Court preferred the view taken by the Bombay High Court on the point of right of redemption. In Shridhar Sadba v. Qanu Mahadu ILR (1927) 52 Bom. 111, the Bombay High Court, long before the decision of the Federal Court above referred to, observed that a mere dismissal for default, without going in any way into the merits of the case, or perhaps even appreciating that the suit was one for redemption, could not fairly be said to be an order extinguishing the right of redemption. In Vilhal Bajaram v. Ramchadra Pandu ILR [1948] Bom. 189 a Full Bench of the Bombay High Court had to consider whether the abatement of a previous suit for redemption would bar the second suit for redemption. The learned District Judge also observed that the general terms of Order XXII, Rule 9, CPC could not override the specific provisions of Section 60 of the Transfer of Property Act, that so long as the relationship of mortgagor and mortgagee continued and so long as the right to redeem had not been extinguished by a decree of the Court or by the act of the parties, the mortgagor was entitled to go to a Court of law to enforce his right. They also observed that the abatement of the suit was not a decree of the Court, which extinguished the right of redemption.

In the instant case, the Plaintiffs have filed their suit for redemption on the ground that their predecessors-in-title were the mortgagors and that the 22nd Defendant is in possession of the suit property, by virtue of an assignment of mortgage from Defendants 5 to 21. They have mentioned in the plaint that their predecessors-in-title filed Original Suit No. 475 of 1121 M.E., in which the Vallavila Church was the tenth Defendant on the bona fide belief that the assignment was taken on behalf of the Church. In the previous proceeding, the Church authorities contended the Plaintiffs'' predecessors-in-title had no title to the property, that the scheduled property belonged to the Church, that it has been used as a burial ground from time immemorial and that they have effected improvements, and that, therefore, they were not entitled to any relief. In the said proceeding, the Plaintiff''s predecessors-in-title contended that the Church authorities did not establish how they got into possession of the suit property. At the same time, they admitted that the Church authorities were in possession of the suit property. That suit was dismissed on the ground that the plaintiffs predecessors-in-title did not establish title to the suit property and as such there was no relationship of mortgagor and mortgagee. In the present suit, the Plaintiffs who are the heirs of the predecessors-in-title have contended that the A and B schedule properties belong to their ancestors. They have established in the Courts below by documentary evidence that their predecessors-in-title were paying property tax in respect of the suit property. There is the finding that the Church authorities have no title to the suit property. There is also the finding that the Church could not have claimed that they got independent possession of the property. They have also been found not to have perfected title by adverse possession. The planitiffs have admittedly within the period of limitation filed the suit. There has been no decree passed by the Court in the earlier litigation extinguishing the right of the Plaintiffs to redeem the mortgaged property. Therefore, the right to redeem still subsists. On a review of the entire case law, it is now clear that unless the extinguishment of the right takes place, the right to redeem is not exhausted. It follows that such a right may then be established by another suit provided of course it is filed within sixty years, the period fixed under the Limitation Act. This principle is correctly applicable to the facts and circumstances of the instant case and, therefore, the same result follows as was drawn by their Lordships of the Judicial Committee in Raghunath Singh v. Hansraj Kunwar ILR (1934) All. 561 which has been followed in Subba Rao v. Raju AIR 1950 F.C. 1. This appeal is allowed with costs. Learned Counsel for the Respondents herein represents to me that a question of law is involved in this case and leave should be granted. It is true that there is a question of law involved. The parties are litigating for more than a quarter of a century and the Appellants are out of possession. Leave is granted on condition that the Respondents deposit a sum of Rs. 750 within three months from this date and on such deposit being made, the Appellants will be at liberty to withdraw the same on furnishing security.