Paranchu vs Thommakutty and Another

O.S. 234 of 1.124 of the Court of the District Munsiff of Trichur, a suit filed on the 24th Thulam 1124 for redemption of a usufructuary mortgage of 1113, was Stayed in pursuance of the proclamation of His Highness the Maharaja of Cochin dated the 29th Dhanu 1124 (VI of 1124) The Plaintiff filed a petition M.P. 1037 of 1.953 praying for a cancellation of the order staying the trial of the suit. He stated:

The statement in Malayalam script is omitted.

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The learned District Munsiff rejected the prayer by the following order, dated 9-7-1953:

In the light of tie decision reported in - ''Vishnu Bhattathiripad v. Poulo'' AIR 1953 TC 327 (A), there is no merit in this petition. It is therefore dismissed. No costs.

The validity of Proclamation VI of 1124 came up for the consideration of a Full Bench of this Court in - ''Jamath Mosque v. Joseph Vakkan'' (S) AIR 1955 TC 227 (B), and it has been held, for the reasons stated, in the order on those petitions, that the Proclamation is ''intra vires'' of the Constitution. In view of the said order Mr. K. Rama Iyer, learned Counsel for the Petitioner, did not agitate afresh the ground already covered but confined his arguments to the validity of the Proclamation in so far as it relates to t1e mortgages with possession dealt with in Section 4 thereof.

Section 4 of the Proclamation provides:

(1) Notwithstanding anything contained in any other law for the time being in force-

(a) No suit for the redemption of a mortgage with possession executed on or after the first day of Chingom 1111 shall be maintainable in OUR Courts where the property comprised in the mortgage was outstanding with the mortgagee or his predecessors in interest on verumpattorn immediately prior to the mortgage with possession; and

(b) No suit for the redemption of a mortgage with possession shall be maintainable in OUR Courts where the interest on the mortgage amount is less than 40 per cent of the total rent fixed in the mortgage document and where the property comprised in the mortgage consists mainly of agricultural land other that lands planted with rubber, coffee, tea, or cashew.

(2) All suits, appeals, revisions, reviews and proceedings in execution of a decree for the redemption of mortgages of the nature specified in Sub-section (1) of this section shall be staved by OUR Courts in so far only as they relate to the relief for redemption.

(3) Nothing contained in this Section shall preclude the mortgagor from instituting a suit for the recovery of rent and puravaka dues for which the mortgagee shall be liable.

and the main contention was that the said section under which the suit has been stayed violates Article 14 of the Constitution.

According to Article 14:

The State shall not deny to any person equality before the law or the equal Protection of the laws within the territory of India.

and it was alleged that the discrimination between mortgages with possession executed before 1111 and those executed on or after the 1st day of Chingom 1111 is a differentiation without a justification and that such treatment is not based on any reasonable classification.

So long as the redemption of all mortgages with possession of property outstanding with the mortgagees or their predecessors-in-interest on verumpattom immediately prior to the mortgages were not intended to be brought within the purview of Proclamation VI of 1124, a date before which it should not be operative had to be specified and a certain element of arbitrariness in the fixing of such a date was in the nature of things inevitable.

The preamble to the Proclamation says:

Whereas Government intend to consolidate and amend the law relating to landlord and tenant; And whereas it is considered expedient, pending the enactment of such legislation, to stay the collection and recovery of pattom in excess of the pattom payable in money specified in the contract of tenancy in respect of garden lands the major produce of which is cocoanut and to prevent the eviction of certain classes of tenants and Kudikud appukars from their holding: We are hereby pleased to command as follows:

and the main purpose of Section 4 is to preclude the benefits of the legislation contemplated becoming unavailable to those intended to be benefited by such legislation by immediate and anticipatory action on the part of those who are likely to be affected adversely by such legislation.

The history of tenancy legislation in the Cochin State will show that new ideas and a growing desire for more ameliorative provisions in favour of the tenant were gathering momentum round about 1111 (See Cochin Legislative Council Proceedings Vol. II-111, p. 1328 and it is only reasonable to suppose that round about that time would have also begun the attempts on the part of the land owners to take out, if possible by new documents and the use of appropriate phraseology from the realms of tenancy, relations which should normally come within its ambit and to give to such relations an apparent character which may not be affected by the terms of future legislation.

It follows that in order to prevent such documents from defeating the object of the legislature a provision like Section 4 was imperative and and that the distinction between mortgages with possession executed prior to the 1st Chingom 1111 and subsequent therefore should be considered as a distinction based on the conception that mortgages with possession executed subsequent to the 1st Chingom 1111 of property outstanding with mortgagees or their predecessors-in-interest on verumpattom immediately prior to the mortgages may be no more than ordinary tenancies known to Malabar law masquerading as a relationship of a different type altogether.

There is thus ample justification for the differentiation that has been made and the provision can in no way be considered as violating Article 14 of the Constitution.

The further contention that there is a territorial discrimination as between the Cochin and Travancore portions of the State has already been dealt with in the order in (S) AIR 1955 TC 227 (B):

The development of tenancy legislation in the two States has not been uniform, and a complete identify of provisions in every respect cannot but be a matter for the future. The legislative history provides an ample justification for the differences that obtain and the desire of the legislature to ensure party of treatment is clear from the Holding (Stay of Execution Proceedings) Act, 1950, and the amendments thereof.

The argument based on Article 19(1)(f) of the Constitution have been dealt with in the order above mentioned and in view of that all that appears to be necessary to reiterate our conclusion that the Proclamation embodies no more than reasonable restrictions and as such is saved by Article 19(5) of the Constitution.

Two further points mentioned by Mr. Rama Iyer were (1) that the section discriminates between mortgagors and mortgagees by restricting the right of the mortgagees alone and (2) that there is no provision for, the saving of limitation for suits prevented from being filed u/s 4(1) of the Proclamation.

The suit with which we are concerned was filed prior to the Proclamation and Section 4(1)(a) does not come into operation at all, and in view of this it is unnecessary for us to consider as to what exactly is the position of suits precluded from being filed u/s 4(1)(a) as far as the law of limitation is concerned.

Even if Mr. Rama Iyer''s contention that a statutory prohibition as that embodied in Section 4(1)(a) to the filing of a suit will not save the bar of limitation we have no doubt that if such is the case adequate provision will be made in the new Bill before it is passed into law.

The first objection is equally pointless. A differentiation between mortgagors and mortgagees is essential, for any legislation which intends to benefit the former as a measure of social justice and it is equally necessary to maintain that; distinction in a Proclamation like Proclamation VI of 1124 the idea of which, is, as stated before, to ensure that the benefits of the ultimate legislation shall not be lost to the parties intended to be benefited, by immediate and anticipatory action on the part of those who are likely to be adversely affected by such legislation.

The only further contention that remains to be noticed is the contention that Section 4 is not applicable to the present case its (a) only one of the mortgagees was a prior lessee and (b) the mortgagees in question includes property which was not outstanding with the mortgage or their predecessors-in-interest on verumpattom immediately prior to the mortgage.

According to the learned Counsel for the Petitioner the words "where the property comprised in the mortgage was outstanding with the mortgagee or his predecessor-in-interest on verumpattom immediately prior to the mortgage with possession" occurring in Section 4 indicate a conception of "totality" or "indivisibility" and the section is not attracted unless all the items covered by a mortgage with possession were outstanding on verumpattom with all the mortgagees concerned or their predecessors-in-interest immediately prior to the mortgage.

We cannot agree. As we understand Section 4 it affects proceedings relating to the redemption of all mortgages with possession executed on or after the 1st day of Chingom 1111 provided any of the mortgagees or his predecessors-in-interest was a verumpattom lessee immediately prior to the mortgage of all or any of the items covered by the mortgage, the only proceeding exempt being suits for the recovery of rent and puravaka dues which are specifically saved by Sub-section (3) of Section 4 .

In the light of what is stated above this revision petition fails and has to be dismissed. We dismiss the petition with costs.