Cherupushpa Agathi Mandiram and another vs Cochin Devaswom Board

C.A. Vaidialingam, J.—These two appeals arise out of the judgment of the learned District Judge allowing redemption in favour of the plaintiff. A.S. No. 218 of 1956 is the appeal by defendants 2 and 3 and A.S. No. 222 of 1956 is the appeal by the first defendant. The suit itself was for redemption of the mortgage evidenced by Ex. A dated 30-5-1081 as also the puravaipa, Ex. B, dated 16-11-1086. The title of the plaintiff to the suit properties does not appear to be in dispute but the suit for redemption was opposed on the ground that the plaintiff has no right to redeem the mortgage and the puravaipa alone so long as the arrangement under the lease transaction, Ex. C, continues either by virtue of a contract between the parties or by virtue of a later enactment which has come into force.

The learned Judge on a consideration of the various recitals in the documents, evidenced by Exs. A, B and C, has come to the conclusion that there is nothing in these documents to indicate that the plaintiff is not entitled to redeem the mortgage and the puravaipa quite apart from the fact that the lease arrangement continues. In this view, the learned Judge has allowed redemption.

Mr. M.K. Narayana Menon, learned counsel appearing for the first defendant appellant in A.S. 222 of 1956 and Mr. K.K. Mathew learned counsel appearing for defendants 2 and 3, the appellants in A.S. 218 of 1956, advanced substantially the same arguments to show that the reasoning of the learned Judge is not correct. According to the learned counsel, the recitals in Ex. A. taken with the recitals in Ex. C. clearly go to show that the parties contemplated a single arrangement under these documents and they further contemplated redemption of the mortgage along with the extinguishment of the rights under the lease. To put it in another way, the learned counsel contended that so long as the lease arrangement is not terminated the right to redeem the simple mortgage under Ex. A or the puravaipa under Ex. B does not arise in this case. The exact recitals which have been relied upon by Mr. Narayana Menon and Mr. Mathew will be considered by me immediately.

On the other hand, Mr. P.K. Krishnankutti Menon, learned counsel appearing for the plaintiff in the appeals, contended that there is nothing in any of those documents to indicate that the parties agreed to make the right of redemption dependent and contingent upon the extinguishment of the rights under the transaction of lease, Ex. C. The learned counsel also has drawn my attention to certain material clauses in the documents which have to be considered. Therefore, it is the contention of the learned counsel for the respondent that the view adopted by the lower court that the plaintiff is entitled to ask for redemption of Exs. A and B is quite sustainable in law.

At the outset I may state that the line of reasoning adopted by the learned Judge in certain aspects does not appeal to me and therefore it is not necessary for me to adopt some of the reasons given by him for holding against the appellants in these appeals. But I am satisfied after a consideration of the various recitals in these documents that there is absolutely nothing to indicate that the right of redemption was in any way made contingent or dependent upon the extinguishment of the leasehold arrangement under Ex. C.I may also consider one other subsidiary matter which has now come into existence, namely, the fixity of tenure conferred on the verumpattom tenants like the defendants under Ex. C. by virtue of the Cochin Verumpattomdars Act, Act VIII of 1118. I am in perfect agreement with Mr. M.K. Narayana Menon and Mr. Mathew that the construction or interpretation to be placed upon the recitals in Exs. A, B and C should not in any way be influenced by the circumstances that the lessees under Ex. C. have got fixity of tenure under the Cochin Act referred to above and, therefore, the question of termination of the rights under the lease has become at any rate a difficult one. Therefore, the fact that the lessees have obtained rights under the law and therefore the lease arrangement under Ex. C could not ordinarily be put an end to by the landlord is not, in my opinion, a circumstance that could be considered in giving weight to the various recitals in the document. Apart from that circumstance, I am quite satisfied that the conclusions arrived at by the learned Judge, namely, that the plaintiff can redeem Exs. A and B independently is correct though not for the same reasons given by the learned Judge.

In order to appreciate the contentions of learned counsel on both sides, a few facts may be mentioned. The plaintiff Devaswom executed a mortgage under Ex. A on 30-3-1081 in favour of two persons for a sum of Rs. 2000. On the same date under Ex. C. the mortgagors leased the properties in favour of the mortgagees and the subject-matter of the lease appears to be items 3 to 5 comprised in the mortgage deed, Ex. A. and two other items which were not covered by Ex. A. Under Ex. B dated 16-11-1086 there was a puravaipa document executed by the mortgagors for an additional sum of Rs. 700. The redemption that is asked for in this litigation is of Exs. A and B. Ex. A after referring to the mortgage amount of Rs. 2000 provides that the interest due on this mortgage amount is to be adjusted from and out of the pattom payable by the mortgagees in whose favour a lease has been executed on the same date. The period mentioned in Ex. A is 12 years. The particular clause that has been relied upon by Mr. Narayana Menon and Mr. Mathew to show that the parties have categorically agreed that there should be no redemption of the mortgage till there is an extinguishment of the rights under Ex. C. is more or less at the close of the document before the schedules and it is to the following effect:

In particular, both the learned counsel appearing for the respective appellants laid considerable stress on this circumstance, namely, the parties contemplate an extinguishment of the leasehold right at the end of 18 years and any arrears of pattom together with interest thereon that may be outstanding and payable by the mortgagees have to be adjusted in the mortgage amount that is payable, by the mortgagors. The learned counsel also relied upon this circumstance, namely, that the clause extracted above clearly shows that arrears of pattom is made a charge on the mortgage amount and there is also a personal liability on the mortgagee. So far as Ex. C is concerned, after the usual provisions regarding the amount of pattom and other particulars, the material recital so far as the point in question is concerned is to the effect that the balance of pattom and the interest due on the same Will be

There is the further recital that at the end of the period fixed in the lease, whenever required the properties are to be surrendered to the landlord. It must also be stated that Ex. C also provides for a period of 12 years. There is nothing very particular in the puravaipa deed, Ex. B, excepting that there is a provision that the interest in respect of this transaction is also to be adjusted from the pattom and there is a further recital that the period of redemption of the mortgage is extended by eight years.

The contention of the learned counsel is that when parties have specifically stated that the arrears of pattom and interest due thereon is a charge on what I may call the mortgage fund in this matter, then the counsel asks is it open to the party to go behind this recital and ask for redemption of the mortgage alone. Conversely in particular Mr. Mathew posed the question in this manner, i.e., is it open to the mortgagees to demand the mortgage money irrespective of the lease transaction and under these circumstances will it not be open to the mortgagor to defend their action on the ground that the mortgage amount is a security for the arrears of pattom that they may commit regarding the pattom and once the mortgage amount is paid back there will be no security in respect of the arrears of pattom that may be oustanding from the mortgagees. In my opinion, this argument is not sound. It must be remembered that the provision in both the documents, namely, Exs. A and C. is fixing a period of 12 years. Therefore, at the end of 12 years the parties contemplated and proceeded on the basis that there can be a termination of the rights under the mortgage as well as an extinguishment of the rights under the lease. Therefore, it is quite natural in these circumstances for parties to agree that on the expiry of 12 years'' period the accounts regarding the arrears of pattom will be considered and taken into account and adjusted towards the mortgage amount that may be then ultimately payable. The question is whether these recitals extracted above by themselves are enough to debar the plaintiff from asking for redemption of the mortgage alone disregarding the rights of the mortgagees under the lease back transaction.

In the absence of any clear and positive indication to this effect in the document, in my opinion, the contention of the learned counsel that parties have arranged for an extinguishment of the rights under the lease as a condition precedent to the exercise of the right to redemption cannot be accepted. The clause extracted above does not, in my opinion, go to the whole length to support the contention of learned counsel for the appellants. The fact that arrears of pattom are stated to be a charge or

on the

does not in my opinion advance the case of the appellants in any way. After the particular clause in Ex. A extracted above and notwithstanding the fact that a period of 12 years has been fixed in the earlier portion of the document, Ex. A concludes again by saying that the mortgagees will not demand the

within the period of 12 years. Therefore, that gives a clear indication that the mortgage money should be considered to be asked for at the end of 12 years. No doubt, it is this period that is further extended by another eight years under Ex. B and, therefore, at the end of 20 years from 30-3-1081 in my opinion, the mortgage amount must be considered to be due and the plaintiff is entitled to ask for a redemption of Exs. A and B disregarding the rights of the defendants under Ex. C. As I mentioned earlier, the recital very strongly relied upon in Ex. C will not give any support to the contention that the right of redemption is co-terminus with the extinguishment of the rights under Ex. C. As I mentioned earlier, the parties contemplated at the expiry of the period fixed in both the documents, namely, 12 years, for a mutual and final settlement of accounts. The fact that the lease transaction is allowed to continue over by contract or by operation of law does not in any way operate as a bar to the plaintiff''s right to ask for redemption of Exs. A and B.

That the parties did not contemplate a termination of the lease as a condition to the termination of the rights under the mortgage is also clear from the fact that though under Ex. B, the puravaipa document of 1086, the term of the mortgage was extended by another eight years, and though the interest was stated to be adjusted from and out of the pattom, there was absolutely no extension so far as the period of 12 years fixed under the lease, Ex. C. was concerned. Further, there is another crucial recital in Ex. C, itself to the effect that after the

fixed in the document the lessees are to surrender unconditionally and without raising any objections their leasehold rights whenever demand is made by the lessor. These circumstances again indicate that only so far as the lease transaction and the mortgage transaction continue side by side, the lease amount can be considered to be a charge on the

These again show that there can be a redemption of the mortgage irrespective of the continuance of the lease after the period of 12 years fixed under Ex. C.

In this view the decree of the learned Judge is sustained, though for different reasons, and both the appeals are dismissed. The plaintiff in both these appeals will get one set of costs, half from defendants 2 and 3 and half from defendant 1. There is one other minor matter which has been brought to my notice by the learned counsel appearing for the appellants, i.e. the disallowance of costs by the trial court in their favour. The reason for disallowing costs is contained in paragraph 14 of the learned Judge''s judgment. The reason given by him is that the mortgagees having been resisting redemption and their contentions have been repelled. In my opinion, this reasoning does not appeal to me. I am free to admit that the particular clause relied upon by the learned counsel for the appellants is one not free from difficulty and if the appellants proceeded on the basis that they have got an arguable case on the basis of the agreement entered into between the parties, in my opinion, it cannot be stated that the defence was in any way not bona ride. There fore, they have to be paid their costs in the lower court. The decree of the lower court will be slightly modified to this extent, namely, that in addition to the amounts mentioned in the lower court the plaintiff will also deposit the costs of the trial court. The plaintiff is given six weeks'' time from today to deposit the costs of the trial court also.