Gouri Pillai Narayani Pillai vs Lekshmi Pillai Kunji Pillai

Sankaran, J.—Plaintiff has preferred this second appeal. His suit is for redemption of the sub mortgage Ex. C. Both the lower Courts held that the suit is not maintainable and accordingly dismissed the suit without considering the other issues involved in the case.

It is common ground that the property belonged to one Palode tarwad and that it had been mortgaged from that tarwad in the year 1029. Certain members of the Pandaravila Veedu obtained an assignment of that mortgage right and the deed of assignment is Ex. 4. They in turn sub-mortgaged the property under Ex. C of the year 1056 in favour of the members of the Matathuvilagom Veedu. While the submortgagees were thus in possession the Defendant took the sale deed Ex. III in respect of the equity of redemption of the property from the Palode tarwad. Subsequently the Defendant obtained Ex. 1 release deed from the submortgagees under Ex. C. Plaintiff who is a member of the Pardaravila Veedu who had the Mortgage right under Ex. IV has instituted the present suit for redemption of the sub-mortgage Ex. C on the ground that the Defendant is only an assignee of the rights under Ex. C even, though Ex. I purports to be a release of that right.

The lower Courts have taken the view that under Ex. I there has been a valid and effective release of the sub-mortgage Ex. C. This view is clearly erroneous. The sub-mortgagee has no privity of estate or privity of contract with the original mortgagor, who is now represented by the Defendant. So far as the sub-mortgage is concerned, the privity of estate and privity of contract are between the mortgagee and the sub-mortgagee and as such, the sub-mortgage can be put an end to by redemption or by release, only by the original mortgagee and his representative-in-interest. No doubt the Defendant as representing the mortgagor can redeem the original mortgage and put an end to it. In such a suit for redemption of the mortgage he can terminate the sub-mortgage by making the sub-mortgagee also a party to that suit. But the mortgagor has no right to directly terminate, the sub-mortgage independent of the mortgage. It cannot also be said that on the mortgagor acquiring the rights under the sub-mortgagor there is a merger of the sub-mortgage in the ownership of the property. Such merger is possible only if there is no intermediate charge subsisting. As between the ownership of the property and the rights under the sub-mortgage there is mortgage charge subsisting and so long as that intermediate charge subsists, there can be no merger of the sub-mortgage in the ownership of the property. It follows therefore that even though Ex. I purports to be a release of the sub-mortgage, it is in effect only an assignment of the rights under the sub-mortgage Ex. C, and the Defendant''s possession is the possession of the sub-mortgage under Ex. C. Plaintiff is therefore entitled to redeem that sub-mortgage and recover possession, from the Defendant. No doubt the Defendant who stands in the position of the mortgagor will be entitled to redeem the original mortgage if the right to do so is even now subsisting. Such redemption has to be sought for in a separate suit, so that the mortgagee may get an opportunity to raise all contentions that may be available to him. In this view of the matter the Defendant''s prayer to have his written statement amended so as to include a prayer for redemption of the mortgage, has been disallowed.

In the result, this second appeal is allowed with costs, and in reversal of the decrees of the lower Courts, Plaintiff''s suit for redemption of Ex. C sub-mortgage and for recovery of possession of the property from the Defendant, is held to be maintainable. Since the other issues involved in the case have not been considered by the lower Courts, the case is remanded to the trial Court for fresh disposal after trying those issues also. Refund allowed to the Appellant.