Raghavan Nair vs Daniel

Raman Nayar J.

The only ground on which the petitioner sought the summary dismissal of the application for redemption of a possessory mortgage brought by the respondent u/s 11 (2) of Kerala Act, XXXI of 1958 was that the respondent had purchased the equity of redemption only after the commencement of the Act so that the respondent was not the mortgagor at the commencement. The objection seems to me untenable and was in my view rightly disallowed by the court below. Sub-section (1) of section 11 provides that that section applies to all subsisting possessory mortgages executed by an agriculturist before the commencement of the Act, and so long as those conditions are fulfilled, namely, that execution of the mortgage was before the commencement of the Act as it was in this case and that the executant was an agriculturist, I see nothing in the section or elsewhere in the Act to disentitle an assign from the mortgagor (whether before or after such commencement) from claiming the benefits of the section. Section 7 of Madras Act IV of 1938 which says that all debts payable by an agriculturist at the commencement of that Act shall be scaled down in accordance with the provisions of the chapter in which it appears, was construed by the Supreme Court in Cheruvu Nageswaraswami Vs. Rajah Vadrevu Viswasundara Rao and Others, as making the benefits of that chapter available to the assigns and legal representatives of the original debtor. (See paragraph 12 at page 372 of the report). And although the definition in Section 59A of the Transfer of Property Act is expressly confined to the chapter in which it appears, it is well recognised that the words "mortgagor" and "mortgagee" are not confined to the original mortgagor and mortgagee but include persons deriving title from them respective!). So, the argument that the respondent is not the mortgagor and is not therefore entitled to make a deposit and recover the mortgaged property in terms of sub-section (2) of section 11 of Act XXXI/58, fails. The objection that an essential condition for the application of Section 11 of Act XXXI/58 is that the original mortgagor must be an agriculturist and that the respondent''s application does not even contain an allegation to this effect is taken before me for the first time, and I am not prepared to countenance it here. The court below will no doubt consider that objection when it is taken, and, even if it is not taken, will no doubt, before allowing the respondent''s application, satisfy itself that the requirements of Section 11 are fulfilled. It is always open to it to allow an amendment of the pleadings on such terms as it thinks fit and it would not be proper for me, when considering whether the only objection taken by the petitioner was rightly over-ruled by the court below, to dismiss the respondent''s application on the ground that an essential fact has not been averred therein.

I dismiss the petition with costs.