Kochukunju and Another vs Sankara Pillai and Others

Kumara Pillai, J.—This is an appeal against the decree in a suit for redemption of a mortgage.

Plaint A and B schedule properties belong to the 3rd Defendant and were mortgaged by him on 11-10-1093 to one Subramania Pillai and his brother Krishna Pillai for 5100 fanams. Ex. A is a copy of the mortgage deed. Some of the mortgaged properties are jenmam lands of a Devaswom and michavarom was payable in respect of them. It was provided in Ex. A that the mortgagees should pay the Sirkar tax and the michavarom payable in respect of the mortgaged properties. In 1103, the first Defendant took an assignment of Ex. A mortgage. Ex. B is the deed of assignment. Subsequently, for arrears of michavarom due in respect of plaint B schedule item 3 (wrongly stated in the second Defendant''s written Statement as plaint B schedule item No. 2) and other properties for the years 1091 to 1102 the jenmi-Devasom filed a suit against Defendants 1 and 3 and other persons and obtained Ex. C decree on 17-12-1102. Some of the properties comprised in that decree including plaint B schedule item 3 in this suit were caused to be sold in execution thereof by the decree-holder on 16-3-1104 and at the execution sale the second Defendant purchased those properties.

On 3-9-1123 the third Defendant executed Ex. F. superior mortgage, in favour of the Plaintiffs for plaint A and B schedule properties directing them to redeem Ex. A mortgage and recover possession of the properties. It was, provided in Ex. F that, after the redemption, of Ex. A, the Plaintiffs should surrender plaint B schedule properties to the third Defendant and hold A schedule properties on mortgage. On the strength of Ex. F, Plaintiffs brought the present suit for redemption of Ex. A mortgage and recovery of possession of plaint A and B schedule properties. They stated in the plaint that the annual michavarom payable in respect of plaint B schedule item 3 was 5 paras 7 1/2 Edangalies of paddy, that the michavarom for it for the years 1095 to 1116 was in arrears and that they were, therefore, entitled to set off a sum of 3562 1/2 fanams due on account of the said - arrears of michavarom and interest thereon against the mortgage amount payable for the redemption of Ex. A. This figure of 3562-j fanams was arrived at on the basis that the total arrears and the interest thereon would be 250 paras of paddy and that the price per para of paddy was 14 1/2 fanams.

The Plaintiffs'' case with regard to the second Defendant and plaint B schedule item 3 was that the first Defendant had fraudulently caused certain records to be created in the name of the second Defendant and that the first Defendant was really in possession of B schedule item 3. Defendants 1 and 2 contested the suit filing separate written statements.

For the purpose of disposing of the questions that were argued in this appeal, it will be sufficient to state here only some of the contentions. The first Defendant contended that the Plaintiffs were not entitled to set off the arrears of michavarom against the mortgage amount, that the rate of michavarom and the price of paddy mentioned in the plaint were not correct, and that the claim for the arrears from 1095 to 1116 had become barred by limitation. The second Defendant contended that he had become the absolute owner of plaint B schedule item 3 by the Court sale and purchase in execution of Ex. C decree and that the Plaintiffs were not, therefore, entitled to recover possession of that property from him.

The Court below found that the purchase of plaint B schedule item 3 by the secound Defendant at the Court sale in Ex. C case was benami for the first Defendant and, therefore, the mortgage was subsisting in respect of plaint B schedule item 3 also and the Plaintiffs were entitled to recover possession of that item in redeeming Ex. A, that a sum of 3562 1/2 fanams was due from the mortgagees on account of the arrears of michavarom for plaint B schedule- item 3, and that the Plaintiffs were entitled to set off the said sum against the mortgage amount. Consequently, it gave a decree to the Plaintiffs Which reads as follows:

In the result Plaintiffs are allowed to redeem plaint A and B schedule items from Defendants 1 and 2 on payment of mortgage amount of Fs. 5100 setting off the arrears of michavarom of Fs. 3562J with an annual mesne profits of 90 paras of paddy from 1st Defendant.

In the circumstances of this case parties are ordered, to suffer their respective costs. Future mesne profits at the above rate is allowed from the date of deposit till date of recovery or for 3 years from this date whichever happens earlier. 1st Defendant drew the mortgage amount setting off the arrears of michavarom to be deposited in Court after filing all title deeds and tax receipts.

Defendants 1 and 2 have jointly filed this appeal against the above decree. Three point alone were urged by the Appellants counsel at the time of hearing of this appeal. They were: the lower, Court was wrong in allowing the, Plaintiffs to set off the arrears of michavarom: no mesne profits Should have been allowed; and in any event, the price awarded for the paddy is excessive.

The finding,of the Court below that the purchase of plaint B schedule item 3 by the second Defendant at the Court sale in Ex. C suit is benami for the first Defendant is accepted by the Appellants, and the Plaintiffs-Respondents have not taken any objection to it. In fact they cannot object to the finding, for their case in the plaint itself was that the first Defendant is in possession of plaint B schedule item 3 and that the records standing in the name of the second Defendant were fraudulently brought into existence by the first Defendant. By the auction sale in Ex. C suit, the arrears of michavarom up to 1102 have been discharged. In view of the finding that the said Court Sale was benami for the first Defendant and that Ex. A mortgage is, therefore, still subsisting even as regards that item it cannot also be contended that the mortgagor has in any way been damnified by that Court sale. So neither the mortgagor nor the superior mortgagee is entitled to set off the michavarom from 1095 to 1102 against the mortgage amount. Nor can they be heard to say that they have sustained any dam-age by reason of the mortgagees failure to pay those arrears and are entitled to recover damages from the mortgagees in respect of the same.

As regards the arrears from 1103 to 1116, it is admitted that, although the mortgagees have not paid the same to the jenmi, neither the mortgagor nor his assignee (Plaintiff) has paid it. The jenmi''s right to the arrears in respect of those years has also become barred by limitation. In these circumstances, it cannot be contended that the mortgagor or the Plaintiff'' has sustained any damage on account of the mortgagees failure to pay the arrears. The claim for the arrears cannot, therefore, be put on the ground of any damage ha been sustained by the mortgagor.

The next question for consideration is whether the mortgagor is entitled to get the amount from the mortgagee simply because the latter has obtained a benefit by the nonpayment to the jenmi and the jenmi''s omission to take the necessary legal steps for recovery of the arrears. In an exactly similar case in which a lease-hold interest was mortgaged and the mortgagor sought to set off against the mortgage amount the arrears of rent payable to the landlord which the mortgagee had been directed to pay, it was held by the Calcutta High Court that a usufructuary mortgagor cannot get credit for any rent, payable to the landlord on account of the mortgaged properties which are not actually paid by him see - Prosanna Kumar Halder Vs. Girish Chandra Ghose, . The learned Judges who 1 decided that case have observed:

It appears to be in consonance with principles of justice, as also with the equities involved in the case before us that the Plaintiffs cannot get credit for any rent payable on account of the mortgaged properties which were not actually paid by them, or the predecessor-in-title, Dwarka Nath Ghose, by whom the mortgages in suit were executed.

Likewise, the Madras High Court has also "held in - Cheriyath Manayil Paru Amma and Another Vs. Kannamot Kelu Kurup, that the lessor''s inaction in not insisting on the payment of the rent enured to the benefit of the mortgagee and not of the mortgagor and that the mortgagor was not entitled to credit for the unpaid rent by virtue of the provisions of Section 76(h) of the Transfer of Property Act (1882). In that case it was held that as the mortgage in question was a usufructuary one there was no duty on the part of the'' mortgagee to account to the mortgagor for the profits taken by him from the property. The mortgage sought to be redeemed in this case also is a usufructuary mortgage which allows the mortgagees to take the entire profits of the properties subject to his liability to pay the Sirkar tax and the michavarom to the jenmi. The jenmi''s inaction would, therefore, naturally enure to the benefit of the mortgagee anu-no t to the benefit of the mortgagor. The same view has been expressed by the Patna High Court also in - ''Tokhan Pandey v. Sivakanta'' AIR 1920 Pat 66 (C) and - Raghubar Narayan Chaudhuri Vs. Mohit Narayan Jha and Others, We, therefore, hold that the Plaintiffs are not entitled to set off the arrears of michavarom mentioned in the plaint against the mortgage amount.

In view of the above finding, it is not necessary to consider the contentions of the parties relating to the. rate of michavarom and the price of paddy. As the Plaintiffs have been contending till now that 3562 1/2 fanams should he deducted from the mortgage amount and that the mortgagee can be allowed to draw only the balance of the mortgage amount, there has been no unconditional tender of the mortgage amount; and therefore, their claim for mesne profits from the date of deposit of the mortgage amount cannot be allowed. They agreed to the full mortgage amount being drawn by the mortgagee when the petition which the Appellants had filed in this Court for staying execution of the lower Court''s decree came up for final hearing on 27-3-1950. Mesne profits can therefore be allowed to them only from 27-3-1950.

In the result, the Plaintiffs are given a decree to redeem plaint A and B schedule item from Defendants 1 and 2 and recover possession of those properties on depositing in Court the full mortgage amount of 5100 fanams, and the first Defendant is allowed to draw the same from Court.

Plaintiffs are also allowed to recover mesne profits at the rate of 90 (ninety) paras of paddy per year from 27-3-1950 till date of recovery of possession or the lapse of three years from date whichever is earlier. The lower Court''s will stand. The appeal is allowed with costs to the extent indicated above. The Plaintiffs memorandum of objection is dismissed with costs.