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1952 DIGILAW 130 (KER)

Kunhu Moideen v. Subramonia Iyer

1952-11-21

GANGADHARA MENON, KOSHI

body1952
Judgment :- 1. These appeals arise from the judgment and decree in 0. S. 86 of 1122 on the file of the Anjikaimal District Court which was a suit to enforce a simple mortgage by sale of one of the mortgaged items. The mortgage was in the sum of Rs. 2150/- and it was executed by the father of defendant 1 to the plaintiff's deceased father on 28-5-1097. The mortgage money was made payable on or after 30-5-1098. The mortgagor is also dead. After he died his heirs consisting of a son (Defendant 1) and four daughters partitioned his estate. While distinct portions of the mortgaged properties went to one and all of them the liability was apportioned among defendant 1 and daughter Rabbia. The former was to pay Rs. 900/- and the balance Rs. 1250/- was to be discharged by the latter. The partition was in 1104 and defendant 1 was a minor at that time. On his coming of age the plaintiff obtained a registered acknowledgment (Ext. A dated 27-5-1110) of the mortgage debt from him. The suit was brought on 20-5-1122 when twelve years were about to expire from the date of the acknowledgment. Defendant 1 raised several contentions but they were all repelled by the learned temporary additional judge who tried the suit and A. S. 23 is the appeal by defendant 1 from his decision. Though the several points urged before the trial court are seen reiterated in the memorandum of appeal, Counsel for the appellant urged only three points before us and these points alone need be considered in that appeal. 2. Before proceeding to consider them it may be stated that Defendant 2 in the suit is the appellant in the connected appeal A. S. 25. He claimed to be an assignee of the lessee's interest over the plaint item. His contention was that the lease had originated prior to the mortgage and the leasehold interest could not therefore be affected by the decree to be passed in the suit. According to him he was entitled to fixity of tenure under the Verumpattadars' Act. The lower Court found that the lease was not anterior to the mortgage and that the leasehold interest will therefore he subject to the decree. Hence the appeal by him. 3. A. S. 25 can be easily disposed of. According to him he was entitled to fixity of tenure under the Verumpattadars' Act. The lower Court found that the lease was not anterior to the mortgage and that the leasehold interest will therefore he subject to the decree. Hence the appeal by him. 3. A. S. 25 can be easily disposed of. The lease is said to have originated in 1092 but there is no contemporaneous document to evidence it. After defendant 1 acknowledged the debt in 1110 notices passed between him and his so called lessee. Soon afterwards that lessee assigned his interest to defendant 2 under Ext. V. The document mentions for the first time that the lease was of the year 1092. Defendant 2 informed Defendant 1 about the assignment as per the notice Ext. III. The lower court has mentioned three main grounds to show that the lease set up is not true. The suit mortgage (Ext. B) states that the mortgagor was in direct possession of all the mortgaged items. As a piece of evidence this is very valuable. Secondly the partition deed of 1104 (Ext. IV) goes to show that at the time of the partition there was only one property outstanding under a lease. That however was not the plaint item. The evidence of Pw.1, which the lower court characterises as respectable evidence, shows that all except one item were in the direct possession of the sharers. He, Pw.1 was the principal mediator in effecting the division. Thirdly the 1st defendant said that the accounts maintained by his father would show that the property was outstanding with the lessee from 1092 onwards. These accounts have not been got produced nor has defendant 2 produced any vouchers to show that his predecessor-in-interest had paid pattom for any period prior to 1098. In this state of the evidence we cannot find our way to hold that there was any lease anterior to the mortgage or interfere with the lower court's decision repelling the contentions of defendant 2. His appeal will therefore stand dismissed with costs. 4. Now we come to the main appeal A. S. 23. The grounds urged before us were (1) that the acknowledgment evidenced by Ext. A was only of the amount of Rs. His appeal will therefore stand dismissed with costs. 4. Now we come to the main appeal A. S. 23. The grounds urged before us were (1) that the acknowledgment evidenced by Ext. A was only of the amount of Rs. 900/- the partition deed directed defendant 1 to discharge and not of the entire mortgage money, (2) that by seeking to proceed against the item allotted to defendant 1 alone the plaintiff has forfeited his right to the proportionate mortgage money chargeable on other items included in the mortgage security and (3) that by virtue of the provisions of the Cochin Agriculturists' Relief Act the plaintiff was not entitled to interest on the arrears of interest due when the Act came into force. 5. Of these we may even now state that there is no substance in the first two points. The words employed in Ext. A clearly show that the whole mortgage transaction was acknowledged and not merely the liability for a share The learned counsel for the appellant had himself to concede this. In fact he concentrated his attention on the other two < points. On the facts of the case there is however no scope for the second point to arise. There is no release by the mortgagee of the other items. The mortgage money became payable in Makaram 1098. The partition deed was in 1104 and therein all sharers except defendant 1 had acknowledged the debt. Twelve years therefrom expired in 1116. The suit as noticed earlier was brought only in 1122 when the relief against these sharers and their properties had got clearly barred by limitation. Assuming therefore that the law laid down in some cases that if the mortgagee released part of the property mortgaged that would entitle the owner of the remaining property to claim a rateable abatement of the mortgage money is good there is no release at all in this case. Moreover it has now come to be recognised that it is only when there is a merger of the interests of the mortgagor and the mortgagee in respect of portion of the mortgaged property that the mortgagor could claim any abatement. However as the facts do not make out that there has been any release of a portion of the mortgage security we need not go into what the correct law on the point is. However as the facts do not make out that there has been any release of a portion of the mortgage security we need not go into what the correct law on the point is. The acknowledgment is of the entire mortgage debt without any reservation and no subsequent conduct or event disentitled the mortgagee to seek to realise the mortgage money from any portion of the mortgage security. The second point raised in the appeal is also therefore found against the appellant. 6. The third point raises a question under the Cochin Agriculturists' Relief Act. Admittedly Defendant 1 is an agriculturist. Section 7 (2) of the Agriculturists' Relief Act enacts inter alia that no sum in excess of the amount scaled down under the provisions of the Act shall be recoverable from an agriculturist or from any land or interest in land belonging to him. Sub-section (3) of section 7 states that the scaled down debt shall be payable in two equal instalments falling on the last day of Makaram and Karkadagam 1115. There is a proviso added to this clause and it is as follows: "Provided that if default is made in any instalment the whole or the balance, as the case may be, of the debt as scaled down with interest as specified in Section 13 from the date of default shall become immediately payable." 7. No question of discharge by instalments as laid down in the sub-section arises in the case. We have therefore to refer to the proviso and to section 13 to find out the quantum of interest recoverable. 8. It is needless to refer to the provisions in sections 8 and 9 as there is no controversy about their application. It is common ground that on 1-1-1115 when the Agriculturists' Relief Act came into force the amount due as per the mortgage was the principal amount of Rs. 2150/- and interest thereon at six per cent per annum from 1-1-1107 to the date of the Act. This interest came to Rs. 1032. The controversy between the parties is only whether this amount of Rs. 1032/- will bear interest till realisation. 9. The lower court has decided the point in favour of the plaintiff respondent and the appellant challenges the correctness of the decision. This interest came to Rs. 1032. The controversy between the parties is only whether this amount of Rs. 1032/- will bear interest till realisation. 9. The lower court has decided the point in favour of the plaintiff respondent and the appellant challenges the correctness of the decision. Section 13 of the Act states: "All debts which have been scaled down under the provisions of this Act shall carry from the date of the commencement of this Act, interest on the principal amount due on that date at the rate previously applicable under law, custom, contract or otherwise." 10. A proviso appended to the section states inter alia that such interest shall not exceed six per cent per annum in the case of creditors other than public companies. We have already referred to the proviso to sub-section (3) of section 7 but that may again be read here. It reads: "Provided that if default is made in any instalment the whole or the balance, as the case may be of the debt as scaled down with interest as specified in section 13 from the date of default shall become immediately payable." 11. The argument of the respondent's counsel is that the expression "interest as specified in section 13" in this proviso has only reference to the rate of interest. Though this view is supported by decided cases of the Cochin High Court we are afraid it is too narrow a construction of the meaning of the expression. The words do not restrict the application of section 13 to the rate of interest alone. If the legislature wanted to so restrict it there is no reason why it should not have introduced also the word 'rate' into the proviso". Further, If the whole debt as scaled down is to carry interest the words on the principal amount due on that date' in section 13 have to be regarded as otiose. Unless we read section 13 without these words the constructing sought to be given by the respondent and which found favour with the High Court of Cochin cannot in our opinion be accepted. In construing a statute we cannot read into it words that are not there or delete therefrom words that are there to suit our fancies Or to agree with what we consider what the law ought to be. In construing a statute we cannot read into it words that are not there or delete therefrom words that are there to suit our fancies Or to agree with what we consider what the law ought to be. The intention of the legislature has to be spelled out from the words actually used and also by giving those words their natural and ordinary meaning. Section 13 states that'the principal amount of the debt' due on the date of the commencement of the Act shall carry interest from that date and not that "all debts which have been scaled down" shall carry interest. The section opens with the latter expression and if the legislature intended the interest portion of the debt as scaled down should also carry interest it was unnecessary to introduce into the section the term "the principal amount of the debt." Without it that meaning alone would have arisen and with it that meaning does not arise at all. 12. We regret we cannot follow the decision in 82 Cochin 438 (F.B.) which lays down the contrary rule. According to us even when there is no attempt to discharge the debt scaled down as per the instalments specified in section 7 (3) the principal amount of the debt due on 1-1-1115 alone carries future interest. In fact to allow interest on interest would appear to us to be against the general scheme of the Agriculturists' Relief Act. Where the legislature intended otherwise it specifically makes provision in that behalf. Section 10 which states that "arrears of interest which have been included as principal in the subsisting document shall be treated as principal for the purposes of sections 8 and 9 if they relate to any period till 1st Chingom 1107 but not otherwise" may be referred to in this context. The lower court's decree allowing interest on the interest portion of the claim has therefore to be modified. The plaintiff will have a decree for Rs. 3182 together with interest on the principal amount of the debt (Rs. 2150) at six per cent per annum from 1-1-1115 till realization with proportionate costs here and below. There will be a mortgage decree for sale accordingly. Time three months. 13. The plaintiff will have a decree for Rs. 3182 together with interest on the principal amount of the debt (Rs. 2150) at six per cent per annum from 1-1-1115 till realization with proportionate costs here and below. There will be a mortgage decree for sale accordingly. Time three months. 13. Before concluding we must not omit to mention that the respondent's counsel pressed upon us that we should not fail to follow the Full Bench decision in 82 Cochin 438 as it has held the field up till now and has been followed in ever so many cases in the Cochin High Court as well as in the courts subordinate thereto. It was said we should respect it at least on the principle of stare decis. The short answer to it is what has been repeatedly told by this Court that the decisions of the former Travancore and Cochin High Courts are only of persuasive value for us and that those decisions do not bind us. The application of the principle of stare decis or the necessity for reference to a Full Bench does not therefore arise in the case. One of the reasons mentioned by counsel not to depart from the view in 82 Cochin 438, namely, that hereafter such cases are not likely to occur is in itself sufficient to make a reference to a Full Bench unnecessary. 14. In the result we allow A. S. 23 to the extent indicated above and modify the lower court's decision accordingly. The plaintiff and defendant 1 shall receive and pay proportionate costs here and in the trial court.