Idikkali Parvathy Amma v. Cheriyan — 1950 DIGILAW 68 (KER)

Judgment :- 1. Defendants 1 and 4 are the appellants. The suit is for redemption. The properties mentioned in the plaint are comprised in two survey numbers 556/4 A measuring 31 cents and 556/4 B measuring 1 acre and 40 cents. It is alleged that these properties belonged to the Thuruthiyil Tarwad and they mortgaged them on 9.9.1080 under Ext. A. The plaintiff's father Kiriyan Kochu Cheriyan purchased the equity of redemption of the properties under Ext. B from the Thuruthiyil Tarwad. By virtue of Ext. C partition among the children of Kiriyan Kochu Cheriyan and Ext. D sale deed the equity of redemption devolved on the plaintiff. The defendants are in possession of the plaint schedule properties under Ext. A mortgage. Plaintiff therefore sued for redemption of the properties on payment of the mortgage money due. Defendants 1 and 4 contended that the property comprised in S. No. 556/4 is a puthuval registry in favour of 1st defendant's mother Chirutha Idikali and that the plaintiff is not entitled to redeem this property. 2. The learned Munsiff found that S. No. 556/4 A is included in Ext. A mortgage, that even though the property was registered in the name of Chirutha Idikali it is only an accession to the mortgage holding an that the defendants having obtained an assignment of Ext. A mortgage are estopped from contending that S. No. 556/4 A is not redeemable. It was also held that the plaintiff is entitled to get mesne profits from the property at the rate of 112 paras of paddy and 5 fanams per annum till delivery of the property through court. 3. Ext. A is the mortgage dated 9.9.1080 sought to be redeemed in this suit. It is executed by Narayanan Aiyappan of Thuruthiyil House in favour of Aiyappan Sankaran. This document includes the entire property comprised in the two S. Nos. 556/4 and 556/4 B. Ext. A is for 16 paras of paddy land. 10 paras of land out of this is stated to be in the possession of the prior mortgagee Chirutha Idikali under the prior mortgage of 1050 and subsequent purakkadams and redemption thereof is directed from the mortgagees. The remaining 6 paras of land included in Ext. A is stated to be in the possession of the mortgagor Naryanan Aiyappan and possession thereof is stated to have been handed over to the mortgagee under Ext. The remaining 6 paras of land included in Ext. A is stated to be in the possession of the mortgagor Naryanan Aiyappan and possession thereof is stated to have been handed over to the mortgagee under Ext. A. Ext. A shows that the prior mortgage mentioned therein was one executed by Narayanan Krishnan of Thuruthiyil house in favour of one Krishnan Aiyappan of Kaliyakkal house in the year 1050. This mortgage right was assigned in favour of Chirutha Idikali the mother of 1st defendant in the year 1053. Two purakkadams of the years 1065 and 1074 are stated to have been executed subsequently in favour of Chirutha Idikali in respect of this property. Ext. F dated 9.12.1065 is one of these purakkadams. It clearly states that the property included in the mortgage of 1050 is 10 paras of paddy land in lekkoms 1 to 10. That this is the property comprised in S. No. 556/4 B is admitted by the parties. Therefore the property that was directed to be redeemed from the prior mortgagees in Ext. A is S. No. 556/4 B. It is also admitted that S. No. 556/4 A is a puthuval registry in favour of Chirutha Idikali. S. No. 556/4 A is sought to be redeemed not on the basis that it is included in the mortgage of 1050 or the subsequent purakkadams but on two other grounds. The first is that though the registry stands in the name of Chirutha Idikali, it is an accession to the mortgage and the benefit of the registry therefore would enure to the mortgagor. The second ground is that the defendants have obtained an assignment of Ext. A mortgage and therefore they are estopped from denying the title of the mortgagors and are bound to surrender the property to them. Therefore the first question for decision is whether S. No. 556/4 A is an accession to the mortgage holding as contended for by the plaintiff. No. 556/4 A measuring 31 cents. It is seen from Ext. III that the application of Chirutha Idikali for the registry of the land which appears to have been filed in 1072 was pending disposal for nearly 10 years due to the contest of Narayanan Aiyappan one of the mortgagors on behalf of his tarwad. Various statements of the contesting parties have been recorded by the Revenue Authorities. III that the application of Chirutha Idikali for the registry of the land which appears to have been filed in 1072 was pending disposal for nearly 10 years due to the contest of Narayanan Aiyappan one of the mortgagors on behalf of his tarwad. Various statements of the contesting parties have been recorded by the Revenue Authorities. On 21.2.1080 Narayanan Aiyappan gave up contest through a statement recorded before the Revenue Authorities. Thereafter the land was ordered to be registered in the name of Chirutha Idikali on payment of the tharavila and other amounts due. In pursuance of this order the land was registered in her name. The facts that come out clearly from Ext. III proceedings are that the mortgagor's tarwad pressed their claims for the registry of the land in favour of their tarwad as against the mortgagee and that after a keen contest for nearly 10 years they finally gave up the contest and thereafter the land was registered in favour of Chirutha Idikali in pursuance to the claims put forward by her in her own independent right for the registry of the land. The ruling reported in 30 T.L.R. 105 is almost a parallel case. It was held therein that "It is not an absolute rule that a benefit or interest acquired by a mortgagee over the mortgaged property, in all cases and whatever the circumstances be, must be held in trust for the benefit of the mortgagor. If the mortgagee by fraud or unfair or sharp practice, or behind the back of the mortgagor, obtains an advantage to the prejudice of the rights of redemption, which, though not legally due under, has yet its root in the mortgage, that advantage must he held for the benefit of the mortgagor. But it is open to the mortgagee to show that he acquired the advantage by the mortgagor's consent, or after a contest with him before the grantor of the advantage, or otherwise so openly and fairly that he is equitably entitled to keep it." 4. It is clear from the facts and circumstances of this case that the registry in question was obtained after open and fair contest with the mortgagor. It is clear from the facts and circumstances of this case that the registry in question was obtained after open and fair contest with the mortgagor. There is nothing in this case to show that Chirutha Idikali made any unfair use of her position as mortgagee of S. No. 556/4 B. The fact that Naryanan Aiyappan after ten years of persistent endeavour to get the registry in favour of his tarwad as against Chirutha Idikali withdrew from the contest evidently allowing the registry to be made in favour of the rival claimant cannot lead to the inference of any sharp practice by Chirutha Idikali. At best it will only amount to a consent given by the mortgagor's tarwad to the claims of Chirutha Idikali for the registry of the land in her favour in her own independent right. As has been held in 30 T.L.R. 105 the registry under such circumstances will not enure to the benefit of the mortgagor. The question in each case is "whether the circumstances in which the mortgagee secured the registry are such as to make him liable in equity to surrender it in favour of his mortgagor". (Vide 19 T.L.J. 435). We do not see any such circumstances in this case. We are therefore unable to accept the plaintiff's case that S. No. 556/4 A is an accretion to the mortgage holding that the defendants are liable to surrender that property to the mortgagors. 5. The next ground that is urged is that the defendants have obtained an assignment of Ext. A mortgage and that by virtue of the assignment they are estopped from denying the title of the mortgagor. As has already been stated Ext. A undoubtedly covers both S. Nos. 556/4A and B. The document under which Ext. A right is said to have been assigned in favour of the defendants has been produced before us and we have marked it as Ext. VIII in the case. This document clearly shows that S. No. 556/4 A is not included therein. Ext. VIII takes in only the superior mortgage right created under Ext. A in respect of the property that was originally mortgaged to Chirutha Idikali and was already in her possession. The description of the property in Ext. VIII is the same as that contained in Ext. F purakkadom taken by Chirutha Idikali. Ext. VIII takes in only the superior mortgage right created under Ext. A in respect of the property that was originally mortgaged to Chirutha Idikali and was already in her possession. The description of the property in Ext. VIII is the same as that contained in Ext. F purakkadom taken by Chirutha Idikali. S. No. 556/4 A which is included as an additional property in Ext. A mortgage and which is stated to have been surrendered to the mortgagee under Ext. A is not included in Ext. VIII. Ext. VIII does not purport to transfer any interest that the mortgagees got under Ext. A in respect of S.No. 556/4 A. Therefore it is not possible to infer on the basis of Ext. VIII that the defendants have in any way admitted that the plaintiff or their predecessor-in-interest had any title to or interest in the property comprised in S. No. 556/4 A. There is therefore no bar by estoppel as contended for by the respondents. It follows that plaint item S. No. 556/4 A belongs to the defendants and that the plaintiff is not entitled to recover that property from the defendants. They can redeem only the other properties in the plaint schedule. Next the amount chargeable on the properties that the plaintiff can recover has to be determined. The amount covered by the mortgage assigned in favour of Chirutha Idikali and the subsequent purakkadoms in her favour in respect of the properties ie., the plaint properties other than S. No. 556/4 A is stated by the respondent to be 5750 fanams. This is not disputed by the appellants. We hold that the mortgage money charge on these items is only 5750 fanams. 6. The question of mesne profits has next to be considered. The court below has awarded mesne profits to the plaintiff from the date of deposit of mortgage money till date of recovery of property at the rate of 112 paras of paddy and 5 fanams per annum. This is inclusive of the profits of S. No. 556/4 A which is 31 cents in extent. We have already found that plaintiff is not entitled to recover this property. The mesne profits awarded has therefore to be reduced proportionately. The proportionate profits for S. No. 556/4 A will be 20 paras and 3 edangalies of paddy per annum. This is inclusive of the profits of S. No. 556/4 A which is 31 cents in extent. We have already found that plaintiff is not entitled to recover this property. The mesne profits awarded has therefore to be reduced proportionately. The proportionate profits for S. No. 556/4 A will be 20 paras and 3 edangalies of paddy per annum. The mesne profits for the remaining portion of the plaint properties will be 90 paras and 7 edangalies of paddy and 5 fanams per annum. The plaintiff will be entitled to recover mesne profits at this rate from the date of deposit of the mortgage money till the date of recovery of the plaint property other than S. No. 556/4 A. 7. In the result in modification of the decree of the court below, plaintiff is allowed to redeem plaint item except the property comprised in S. No. 556/4 A, on deposit of the mortgage amount of Rs. 5,750 for payment to the defendants. Plaintiff will recover from the defendants mesne profits at the rate of 91 paras and 7 edangalies of paddy and 5 fanams per annum from the date of deposit of mortgage money till the date of recovery of the property allowed to be recovered. The mesne profits decreed is allowed to be set-off from the mortgage money due to the defendants and the balance of the mortgage amount, if any, will alone be paid to the defendants. The paddy will be valued at Rs. 11/2 per para and as stated by the lower court. The plaintiff's prayer for redemption of plaint item S. No. 556/4 A is disallowed. The appeal is allowed to the extent indicated above. In the circumstances of this case we direct the parties to suffer their costs throughout. Appeal partly allowed.