Subraya Pai vs Subramania Pattar and Another

Devadoss, J.—This is an application to revise the order of the District Judge of South Kanara dismissing the appeal by the petitioner for

setting aside a sale. The first point raised by Mr. Sitarama Rao, for the petitioner, is that the amount due under Ex. A was secured by a kanom

deed and it was not a debt which could be attached and sold under Order 21, Rule 46, Civil P.C., as the kanom deed was a usufructuary

mortgage-deed without covenant to pay the amount Both the lower Courts have held that there was a debt due under Ex. A and that could be

attached under Order 21, Rule 46, Clause (1).

The point is whether Ex. A contains a covenant by the mortgagor to pay the amount to the mortgagee. If there is no -covenant to pay, the

mortgagee cannot have the right to sue for the money secured under Ex. A and cannot in default of payment bring the property to sale. The

relevant portion of the document is as follows:

You shall be in exclusive possession and pay to our tarwad the settlement assessment on the lands at the proper time and take receipt. After the

expiry of the 12 years, if in Kumbham of any year we pay the kanom of Rs. 3,000, you must receive the amount and deliver back possession of

the lands.

The question is whether these clauses contain a covenant to pay.

It is well settled that, in the case of an ordinary kanom demise, the kanomdar cannot sue for the kanom amount and bring the property to sale:

vide Sridevi v. Virarayan [1899] 22 Mad. 350. The learned Judge, relying upon Peetikayil v. Othenam Nambiar [1915] 27 M.L.J. 239, has held

that the amount secured under Ex. A is a debt. Naturally reliance is placed by Mr. Govinda Menon who appeared for the respondent upon that

case as well as a recant case in Ranga-swami Ayyangar v. Veeraraghava Chari AIR 1924 Mad. 513. The case in Chulile Peetikayil Nammad v.

Othenam Nambiar [1915] 27 M.L.J. 239 was a reference by the District Munsif of Cannanore in which he asked for the authoritative opinion of

the High Court as regards the mode in which debts secured on kanom deed should be attached. A Bench of this Court held, following the decision

in Nataraja Ayyar v. South Indian Bank Ltd. [1914] 37 Mad. 51, that a kanomdar''s interest could be attached and sold as it were a debt and

they observe that

the fact of the mortgagee being in possession, actual or constructive, of the mortgage property makes no difference.

The case was not argued by counsel on either side and it does not appear that the decision in Manilal Ranchod v. Motibhai [1911] 35 Bom. 288

was brought to the notice of the learned Judges. The papers in the case have been sent for and they do not throw any light on the actual recitals in

the document. From the letter of the District Munsif it appears that the judgment-debtor''s right was described as one due under a panayam

document. A panayam is an hypothecation or simple mortgage and in the case of a simple mortgage there is an undertaking by the mortgagor to

pay the mortgagee the amount after the period fixed in the document. There is also a remark that it is admitted that the right of the judgment-debtor

is kanom, there being a lease back to the mortgagor. In the absence of the document it cannot be said for certain whether there was or was not a

covenant to repay the amount to the mortgagee. Granting there was not, sitting as a single Judge, I should be inclined to follow the decision in that

case but for the fact that there is a decision of the Bombay Court: Manilal Ranchand v. Motibhai Hamabhai [1911] 35 Bom. 288 and two

decisions of this Court, Ran-gayya Pillai v. Narasimha Ayyangar [1918] M.W.N. 672 and Ramaswami Moopan v. Srinivasa Ayyangar [1915] 39

Mad. 389, which throw a considerable light on the question in dispute and which enables me to distinguish the case in Chullile Peetikayil Nammad

v. Othenam Nambiar [1915] 27 M.L.J. 239, from the facts of this case. In Manilal Ranchod v. Motibhai Hamabhai [1911] 35 Bom. 288 it was

held that a debt secured by a usufructuary mortgage cannot be attached as if it were a simple debt u/s 264, Civil P.C., 1882, corresponding to

Order 21, Rule 46, of the present Code. In that case the recital in the document was:

After the expiration of the fixed period when I repay the principal sum on the very day and in the very month in which I have received the sum, you

may give up the field in Vaishakh in that year.

A Bench of the Court consisting of the learned Chief Justice and Mr. Justice Batchelor held that it was a case of pure usufructuary mortgage and

the amount; could not be attached as a debt. They observe at p. 292:

In the case of a purely usufructuary mortgage, where there is no debt payable by the mortgagor, the procedure by attachment u/s 288 is

inapplicable, The procedure should be by attachment u/s 274 of the interest in immovable property and its sale in accordance with the provision of

the Code.

This decision was quoted with approval in Ramaswami Moopan v. Srinivasa Ayyangar [1915] 39 Mad. 389. Mr. Justice Tyabji who delivered

the judgment of the Court observed at p. 394:

Manilal Ranchod v. Motibhai Hemabhai [1911] 35 Bom. 288 proceeded on the assumption that on the true construction of the deed then before

the Court, there was no debt which the mortgagee was entitled to recover at the time of the attachment; and consequently a person who claimed to

have acquired from the mortgagee a right which the mortgagee himself did not possess, could not claim to be put in possession of the property as

collateral security for a debt which did not exist. Where, in accordance with the document the mortgagee cannot claim to recover any debt from

the mortgagor nor the mortgagor claim to make any payment to the mortgagee, it would seem that the attachment of rights arising under such a

document cannot take the form contained in Order 21, Rule 46, Civil P.C.,; for that form consists of prohibitions from making and receiving

payments; it would be meaningless to prohibit persons from making and receiving payments when their relationship is such that no payments are

contemplated.

In the case in Ramaswami Moopan v. Srinivasa Ayyangar [1915] 39 Mad. 389, the mortgage was a usufructuary mortgage, but there was a

covenant by the mortgagor to pay the mortgage amount and the learned Judges held that there was a debt due from the mortgagor to the

mortgagee which could be attached under Order 21, Rule 46.

The case in Rangayya Pillai v. Narasimha Ayyangar [1918] M.W.N. 672 is very similar to the present case. In that case the document

provided:

At whatever cultivation season in the month of Chitrai in any year after the stipulated period of ten years, I may pay the principal amount, you shall

at that time receive the amount, leave the undermentioned lands in my possession and deliver the document also tome.

Phillips and Krishnan, JJ. held that the stipulation as to payment was one entirely for the benefit of the mortgagor and that it allowed him to

choose his own time for payment if we wished to pay and they observe:

To construe this as a personal covenaut to-pay at the end of ton years which the mortgagee could enforce at once would be to destroy the whole

benefit of the stipulation so far as the mortgagor is concerned. We are not prepared to read into the words a covenant which would destroy the

whole effect of the express arrangement between the parties.

In this case the provision as to payment is entirely for the benefit of the mortgagor and not for the benefit of the mortgagee. It is open to the

mortgagee to pay the amount in any other month than Kumba but the mortgagee would be entitled to be in possession of the property till the month

of Kumba following the payment if payment is made before that month and there is nothing else in the document which could justify the contention

that the mortgagor covenanted or undertook to pay the amount of the mortgage to the mortgagee.

Mr. Govinda Men on very strongly relies upon Kangaya Kurukkal v. Kalimuthu Annavi [1904] 27 Mad. 526, as supporting his contention that

there is a covenant to pay in Ex. A. In that case a Full Bench of this Court held that the document contained a covenant to pay. The recital in that

document was:

Thereafter on (naming a date) on paying (the amount advanced) we shall redeem our land. If on the date so fixed the amount be not paid'' and the

land recovered back, in whatever year we may pay (the amount advanced on (naming the date) of any year, then you shall deliever back our land

to us.

That was a Tamil document and the Tamil is given in a report of that case in Kangaya Kurukkal v. Kalimuthu Annavi [1904] 27 Mad. 526.

The recital in Tamil is as follows:

Appal Bava varusham Panguni masam 30 thethiyil melkanda...seluthivithu yengal Nilangalai thiruppi kolvomagavum.

It is clear from the recitals in Tamil that the mortgagors undertook to pay the mortgage amount on 30th Panguni of the Bava year, and the

clause following the one above quoted contains the covenant that if they did not pay and redeem it in that particular Panguni they should pay the

amount in any other Panguni following and redeem the property.

The Court is not justified to read into any document an intention which is not expressed in it. It is not proper to interpret the terms of one

document in the light of the terms of another document. Each document must be interpreted according to the tenor and actual words used in it. The

case in Rangasami Ayyangar v. Veeraraghavachariar AIR 1924 Mad. 513, is also distinguishable from the facts of the present case. In that case

the recital was:

You yourself shall enjoy the said land from this date in lieu of interest and having paid the amount of principal by 7th July 1917, having endorsed on

this deed I shall enjoy the said land.... If the amount be repaid at the cultivation season of any Ani month, after the due date on which it falls due,

the same must be received in full and the land restored to my possession.

Odgers and Hughes, JJ. held that the first clause contained a covenant to pay. As observed by Odgers, J. at p. 624:

The document Ex. A is executed by the mortgagor Rangasami Ayyangat (the appellant) alone, and the reasonable construction is, in my opinion;

that he took upon himself the obligation by these clauses. The words used are very similar to those considered in Kangaya Kurukkal v. Kalimuthu

Annavi [1904] 27 Mad. 526.

and he distinguished the case in Ran-gayya Pillai v. Narasimka Ayyangar [1918] M.W.N. 672 on the ground that there was no definite date fixed

for repayment as here. Mr. Justice Hughes also was of the opinion that the document in that case was very similar in terms to the document in

Kangaya Kalukkal v. Lakimuthu Annavi [1904] 27 Mad. 526. In the view that there was no covenant to bind the mortgagor to pay the mortgage

amount to the mortgagee, it cannot be said that there was a debt due by the former to the latter and there being no debt, proceedings in attachment

under Order 21, Rule 46 are ultra vires.

Another point was raised by Mr. Sitarama Rao as regards the want of notice to the mortgagor. In the view I have taken on the first point it is

unnecessary to consider this point In the result the judgment of the learned District Judge is set aside. The petition is allowed with costs throughout.