K. Chidambaram Pillai vs M.S. Doraiswamy Chetty

Seshagiri Aiyar, J.—The plaintiff''s assignor executed a deed, of mortgage in favour of the defendant on the 17th August 1898. It was a

simple mortgage-bond. Six years after, in November 1904, a document which is styled as bogia patram was executed by the mortgagor to the

mortgagee. The terms of the document are that the defendant should be in possession for five years under it and credit the rent fixed towards the

interest due under the mortgage of 1898 and that if, after the five years are over, the defendant continues in possession of the property, he should

credit the rent towards the interest on the mortgage-debt, I have no doubt that this document is a lease. The fact that it is for five years and the

other circumstance that provision has been made for holding over, make that position clear.. The rent is fixed: only the lessee is directed to apply

the amount for the interest due under the mortgage document. It was contended before me that this lease-deed supersedes the original mortgage:

or at least the mortgage and the lease read together constitute a usufructuary mortgage. I am unable to accept the contention. Six years after the

original deed, this document was executed and consequently the decision in Sakari Datta v. Ainuddy 6 Ind. Cas. 336 : 12 C.L.J. 620 has no

application to this case. The two transactions must be deemed to be independent of each other and, therefore, the Subordinate Judge is wrong in

holding that until redemption, the amounts due under the lease deed, Exhibit A, ought to be taken into account. Moreover, when the plaintiff

applied after the mortgage decree that the amounts due to him, as rent should be credited towards the amount of the mortgage-decree, the

defendant objected and said that he was only a lessee. The Court executing the decree upheld the contention and directed the plaintiff to file a

separate suit for the amount due under Exhibit A. This decision is binding upon the parties and it is not open now to the defendant to plead that the

plaintiff should have appealed against that decision of the executing Court. The decisions quoted by the Subordinate Judge related to a case of

usufructuary mortgage and have no bearing on the construction of these two documents.

It is not disputed before me that if the defendant is regarded as a lessee, the assignment of the amount of rent due from him will not be

obnoxious to Section 6 of the Transfer of Property Act. The rent is undoubtedly a debt and it is included in the definition of the term ""chose in

action"" and consequently there can be no objection to the assignment of the amount due under Exhibit A. The decision in Kocharla Seetamma v.

Pillala Venkataramanayya 21 Ind. Cas. 357, relied upon by the Subordinate Judge, related to the amount of mesne profits assigned. The definition

of the term ''mesne profits'' pre-supposes that the person liable to pay it, is a trespasser and consequently it being a claim in tort, is not assignable

u/s 6 of the Transfer of Property Act.

For the reasons, I cannot uphold the decree of the Subordinate Judge. I reverse his decision and send the case back to him for ascertaining the

amount due to the plaintiff and to pass a fresh decree. Costs will abide the result.