Govinda and Others vs Mana Vikraman

This was a suit to recover a debt together with arrears of rent due by the defendants upon a mortgage deed and a lease, dated the 31st August 1881. The documents in question

were executed by two persons, named Raman Menon and Kannan Menon, on behalf of the defendants tarward and as its representatives. The instrument of mortgage (Exhibit A)

purports to mortgage 29 items of land for a debt of Rs. 5,000, and to transfer, in lieu of interest due upon it, possession of items 1 to 16 yielding an annual rent of 750 paras of paddy.

The lease purports to be a lease of those 16 items by the mortgagee to the mortgagor for the above rent payable at the end of each year. Out of the mortgage debt a sum of Rs. 300

was left with the mortgagee to be applied in discharge of an encumbrance on items 1 to 13, and it was admitted by the plaintiff in the Court below that he did not so apply the amount.

No rent having been paid according to the terms of the lease, the plaintiff obtained a decree against Raman Menon and Kannan Menon in Original Suit No. 232 of 1883 for arrears of

rent due until April 1883, amounting to Rs. 721-12-1, and attached in its execution certain moveable properties belonging to the defendants'' tarwad. The defendants, however,

repudiated the liability of the tarwad, preferred a claim, and prayed for the attachment being cancelled. Their claim being disallowed, they brought Original Suit No. 71 of 1884 in

which it was finally decided by the Appellate Court that the attachment must be raised on the ground that the decree was personal to Raman Menon and Kannan Menon. The

mortgagors being dead, the plaintiff''s case was that the mortgage debt was a tarwad debt, and that the defendants were liable to pay it and the arrears proportionate to Rs. 4,700

actually advanced by him. The Subordinate Judge decreed the claim, but directed that in default of payment, items 1 to 16 be sold on account of Rs. 2,300 out of the mortgage debt

and proportionate rent, and items 17 to 29 on account of the balance. To this decree both the plaintiff and the defendants object--the former in appeal No. 188 and the latter in appeal

No. 187.

Appeal No. 187.--Four preliminary objections are urged in support of this appeal. As regards the first, viz., the alleged misjoinder of a claim to recover the mortgage debt and a

claim to recover arrears of rent, we are of opinion that the Subordinate Judge properly disallowed it. It was open to the respondent u/s 45

[Section 45: Subject to the rules contained in Chapter II and in Section 44, the plaintiff

may unite in the same suit several causes of action against the

Plaintiff may join sever- same defendant or the same defendants jointly; and any plaintiffs

al oauses of action. having causes of action in which they are jointly interested

against the same defendant, or the same defendants jointly, may unite such causes of action in the same suit.

But if it appear to the Court that any such causes of action cannot be conveniently

tried or disposed of together, the Court may, at any time before

Court may order separa the first hearing of its own motion or on the application of any

tion. defendant, or at any subsequent stage of the suit, if the parties

agree, order separate trials of any such causes of action to be had, or make such other order as may be necessary or expedient for the separate disposal thereof. When causes of

action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit, whether or not

an order has been made under the second paragraph of this section.] of the CPC to unite in one suit several causes of action against the same defendants jointly, and we do not think

that the alternative relief claimed in the plaint, viz., the sale of the mortgaged property in default of payment renders this a suit for the recovery of Immovable property within the

meaning of Section 44.

As regards the second objection, viz., that the suit is not maintainable so far as it relates to items 1 to 16 u/s 67

[Section 67:--In the absence of a contract to the contrary, the mortgagee has, at any

time after the mortgage-money has become payable to him, and

Right to foreclosure or before a decree has been made for the redemption of the

sale. mortgaged-property, or mortgage-money has been paid or deposit-

ed as hereinafter provided, a right to obtain from the Court an order that the mortgagor shall be absolutely debarred of his right to redeem the property, or an order that the property

be sold.

A suit to obtain an order that a mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is called a suit for foreclosure. Nothing in this section shall be

deemed.

(a) to authorize a simple mortgagee as such to institute a suit for foreclosure, or an usufructuary mortgagee as such to institute a suit for foreclosure or sale, or a mortgagee by

conditional sale as such to institute a suit for sale; or

(b) to authorize a mortgagor who holds the mortgagee''s rights as his trustee or legal representative, and who may sue for a sale of the property, to institute a suit for foreclosure; or

(c) to authorize the mortgagee of a railway, canal or other work in the maintenance of which the public are interested, to institute a suit for foreclosure or sale; or.

(d) to authorize a person interested in part only of the mortgage-money to institute a suit relating only to a corresponding part of the mortgaged property, unless the mortgagees have,

with the consent of the mortgagor, severed their interests under the mortgage.]

of the Transfer of Property Act, we consider that it is also untenable. Act IV of 1882 came into force in July 1882, whilst the usufructuary mortgage sued upon was concluded on the

31st August 1881, and even if the Act applied, which it does not, there is an express covenant to repay the debt in the instrument of mortgage--Chathu v. Kunjan ILR 12 Mad. 109

The next objection, viz., that the claim is res judicata so far as it has reference to rent due from 31st August 1881 to 11th July 1883, is also one which cannot be supported. The

present suit is instituted against the defendants'' tarwad, whilst Original Suit No. 232 of 1883 was brought against Raman Menon and Kannan Menon, and the liability now litigated is

that of the tarwad, whilst the liability decreed on the previous occasion was, as urged by these very defendants and as held by the Appellate Court in appeal suit No. 622 of 1884, the

personal liability of the two individuals who executed the original lease.

It is next argued by the appellants pleader that the plaintiff ought to have joined all the members of their tarwad in Original Suit No. 232 of 1883 and that his omission to do so

precludes him from instituting a second suit in respect of the same claim of rent. We are not prepared to accede to this contention either. The decree in Original Suit No. 232 of 1883

was not satisfied, and its execution against tarwad property was obstructed by the defendants, and it failed on the ground that the decree was personal to Raman Menon and Kannan

Menon. If the usufructuary mortgage is really binding on the tarwad we see no reason why the plaintiff should not be permitted to sue the tarwad in respect of rent also which is not

barred, as the pattam chit was a registered document as appears from Exhibit XV and consequently the limitation period is six years under Article 116

________________________________________________________________________________________________________________________________

Description of Suit. | Period of | Time from which period begins

| limitation. | to run.

________________________________________________________________________________________________________________________________

[Article 116.--For compensation for | Six years ... | When the period of limitation

the breach of a contract in writing | | would begin to run against a suit

registered. | | brought on a similar contract not

| | registered.]

________________________________________________________________________________________________________________________________

of schedule II of Act XV of 1877, -see Vythilinga Pillai v. Thetchanamurti Pillai ILR 3 Mad. 76 and Umesh Chunder Mundul v. Adarnoni Dasi ILR Cal., 221.

Passing on to the merits, it was first contended for the appellants that the mortgage was concluded neither for tarwad necessity nor for its benefit; and, secondly, that by reason of a

family karar, Raman Menon and Kannan Menon were not competent to execute the mortgage otherwise than in conjunction with the other members of their tarwad. As regards the

second question, it is dealt with by the Subordinate Judge in paragraph 10 of his judgment, and we concur in his opinion that the karar was not acted upon, but was finally cancelled by

the appellants family. The evidence referred to by him sufficiently warrants the conclusion at which he has arrived. As to the first question, as already observed, Rs. 300 were not

advanced by the respondent, and the Subordinate Judge has upheld his claim only to the extent of Rs. 4,700. The appellants'' case was that Rs. 2,300 were paid in cash, and that Rs.

2,400 were credited towards the purchase-money due to the respondent by Raman Menon for the sale of items 17 to 29 under Exhibits E and Q.

It appears from the evidence that the purchase was made by Raman Menon for the benefit of defendant No. 3, Narayani Amma, the female member of the appellants'' tarwad, on

the assurance of her husband that he would make good the purchase-money for her benefit; but the assurance proved ineffectual owing to his death. Thus, the purchase was made for

the benefit of the female representative of the tarwad, and the property purchased is still in its possession. The vendor has clearly a lien for the unpaid purchase-money at least on the

property sold. As to the remaining Rs. 2,300, it is conceded by the appellants'' pleader that the decree debt evidenced by Exhibit B is binding on the tarwad, and that it was satisfied

out of the money advanced by the plaintiff. The payment on account of that debt amounts to Rs. 1,261-3-11 and there remains a balance of Rs. 1,038-12-1.

As regards the decree debt due to Ramakrishna Putter, the respondents'' case was that he advanced the money bond fide to prevent the impending sale of property purchased by

Raman Menon as the karnavan of the tarwad. The appellants'' contention was that the property was actually sold in execution, and that the payment alleged by the respondent was

really not made. The Subordinate Judge found that the advance was really made, and that the creditor was not responsible for the misapplication by the karnavan of the borrowed

money. Two witnesses deposed that the money was advanced, and the Subordinate Judge has accepted their evidence, which we see no reason to discredit. Moreover, there is no

evidence for the appellants to show that the sale under Exhibit IX was not subsequent to Exhibit A, or to indicate collusion between the respondent and Ramakrishna Putter. It is true

that they did not go into the witness-box; but it was open to the appellants to have cited them as witnesses, and they have not done so. Upon the evidence in the case we cannot say

that the Subordinate Judge has not come to a correct conclusion. The remaining portion of the mortgage debt for which no tarwad necessity is distinctly proved is small; and there is no

ground for the suggestion that the plaintiff did not lend it bond fide. For these reasons, we think that this appeal cannot be supported and must be dismissed with costs.

Appeal No. 188.--It is contended in this appeal that the Subordinate Judge was in error in charging Rs. 2,400 and proportionate rent only on items 17 to 29, As observed, they

were purchased for the benefit of defendant No. 3 on the assurance by her husband that he would pay the purchase-money; but the assurance proved ineffectual in consequence of his

death. The property was acquired by the senior female through whom the other members of the tarwad derive their title to the tarwad property, and they are in possession also of the

property thus acquired. There is, therefore, no reason why the whole tarwad property should not be made liable for this debt.

In allowance, therefore, of this appeal of the plaintiff, the lower Court''s decree will be modified by directing the defendants to pay this amount and its proportionate rent and

interest as a tarwad debt, and defendants will also pay plaintiff''s costs in the lower Court on this amount, as also plaintiff''s costs of this appeal.