Chacko v. Janaki Kunjamma — 1960 DIGILAW 487 (KER)

JUDGMENT T.K. Joseph, J. 1. This second appeal arises from a suit for redemption of a mortgage. The contentions of the parties are stated in paragraphs 1 and 2 of the judgment of the lower appellate court, and the same are extracted below: (1) "The appeal is by the 21st defendant, against a decree passed by the District Munsiff at Kanjirappally, for the redemption of a mortgage evidenced by deed Ext. A of the year 1043, executed by Agasthanathu tarwad, represented by defendants 1, 2 and 56 in favour of Chirakkal tarwad of defendants 3 to 10 the other defendants except defendants 24 to 29 being said to be in possession under the Chirakkal tarwad. The property mortgaged was 60 paras of Cherikkal lands. This was described as items 1 and 2 in the schedule appended to the plaint, item 1 comprising survey numbers 274/1A 12 acres, 274/1B 19 acres and 461/4 cents and 275/1A 11 acres and 86 cent totalling 43 acres and 32| cents and item 2, being the balance of 129 acres 95 cents. Items 3 and 4 are said to be buildings situated on item 1. On a partition in Agasthanathu tarwad, the equity of redemption of item 1 was allotted to defendants 1 and 2, who assigned it to plaintiffs 1 and 2. Their interest is now vested in the 4th plaintiff. Defendants 24 to 29 and 56, who were said to be the owners of the equity of redemption of item 2, not having agreed to sue for the redemption of the mortgage, this suit was laid, for the redemption of item 1 alone, on payment of the proportionate mortgage amount. (2) "The suit was resisted by a large number of defendants including the 21st defendant. His chief contentions which alone are material were that survey number 274/1A in item 1 only was the subject of the mortgage Ext. A, that the remainder of the Cherikkal was puthuval land, and was registered to the Chirakkal family, as puthuval, after an open contest with "the mortgagor, and that therefore, the plaintiff, cannot redeem anything more than 12 acres, being survey number 274/1 A."' The trial court held that Ext. A comprised the whole of items 1 and 2 and that the registry obtained by Chirakkal tarwad enured to the benefit of the mortgagor. A comprised the whole of items 1 and 2 and that the registry obtained by Chirakkal tarwad enured to the benefit of the mortgagor. A decree was accordingly given to the 4th plaintiff for recovery of item No. 1 and the buildings thereon, viz., item Nos. 3 and 4, on payment of the mortgage money and value of improvements which was directed to be ascertained in execution. The 21st defendant preferred an appeal to the District Court. The two points pressed before the lower appellate court were that only 12 acres of land were included in the mortgage and that the registry in favour of the mortgagee did not enure to the mortgagor. The finding of the trial court on the first point was confirmed but as regards the second point, the finding was reversed. The decree of the trial court was accordingly modified, limiting the relief granted to the plaintiffs to recovery of 12 acres in survey No. 274/1A. The fourth plaintiff has therefore preferred this second appeal. The 21st defendant has filed a memorandum of cross objections questioning the finding that items 1 and 2 were included in the mortgage. 2. The point raised in the memorandum of cross objections may be considered first. The courts below have found that the whole of items 1 and 2 were included in the mortgage Ext. A and this finding is based on satisfactory evidence such as the identity of boundaries in Exts. A and B, etc., referred to by the courts below. This being a question of fact, the concurrent finding must be confirmed. 3. This leaves only one question for decision, namely, whether the registry evidenced by Ext. II enures to the benefit of the mortgagor. It is necessary to refer to the Settlement proceedings in this connection. Ext. K is copy of the proceeding which terminated on 15-2-1077. Narayanan Govindan of Agasthanathu tarwad applied for patta for the chrikkals comprised in lekkoms 163 and 165, i. e., the property included in the mortgage. Narayanan Sankaran of Chirakkal tarwad was examined in the enquiry on 14-12-1076. He admitted that the two cherikkals, Kunnathumala and Vadayanamattom, were obtained from Agasthanathu tarward under the kanapattom deed of 1043 (Ext. A in this case) and that he had no objection to the grant of patta to the applicant, Narayanan Govindan. The Settlement Supervisor's decision was that survey Nos. He admitted that the two cherikkals, Kunnathumala and Vadayanamattom, were obtained from Agasthanathu tarward under the kanapattom deed of 1043 (Ext. A in this case) and that he had no objection to the grant of patta to the applicant, Narayanan Govindan. The Settlement Supervisor's decision was that survey Nos. 274/1, 275/1A and two other survey numbers in some other cherikkals with which we are not concerned in this suit were pandaravaka karanpattom comprised in the two lekkoms, that the persons in possession were holding the same under kanapattom from the tarwad of the applicant and that patta should be granted to the applicant. Soon after this decision Chirakkal tarwad partitioned their properties including these properties, under Ext. B on 7-8-1078 stating that the properties were obtained from Agasthanathu tarwad. The boundaries in Ext. B tally with those in Ext. A. Thereafter on 24-4-1081 one Sankaran Narayanan of Chirakkal tarwad filed a petition Ext. J before the settlement authorities stating that one half of the two cherikkals was allotted to him in the family partition, that patta for the excess lands, i. e., lands not already registered should be given either to the Jenmi, i. e., Agasthanathu tarwad, or to himself and that he was obliged to file the petition as the classifier had prepared ozhuku in respect of such land in favour of Sankaran Kumaran and Sankaran Neelacantan belonging to another branch of Chirakkal tarwad. Sankaran Narayanan was thus seeking registry as a person in possession under Agasthanathu tarwad and he had no dispute regarding the title of Agasthanathu tarwad. Ext. II is a copy of the decision regarding this. It appears from Ext. II that one Narayanan Kesavan of Agasthanathu tarwad was the applicant. Sankaran Neelakantan about whom complaint was made by Sankaran in Ext. J. deposed admitting that the lands involved in the case were in lekkoms 163 and 165. The position taken by him was that the land was included in the mortgage obtained from Agasthanathu tarwad, that according to the ozhuku there was an excess area in these chirakkals and that patta for half of such excess should be given to him. The Assistant Settlement Peishkar decided that lekkoms 163 and 165 should be located in the south of survey No. 274/1 and that registry of half the excess area should be given to Sankaran Neelakantan and Sankaran Velayudhan and half to Sankaran Narayanan. The Assistant Settlement Peishkar decided that lekkoms 163 and 165 should be located in the south of survey No. 274/1 and that registry of half the excess area should be given to Sankaran Neelakantan and Sankaran Velayudhan and half to Sankaran Narayanan. This decision was carried out and patta was issued to the persons mentioned above. The question for decision is whether this registry enures to the mortgagor or whether the same put an end to the mortgagor's title. 4. While the trial court held that it would enure to the benefit of the mortgagor, the lower appellate court held that it would not. 5. Both sides agreed that the question whether the registry in favour of the mortgagee would enure to the benefit of the mortgagor has to be decided in the light of section 90 of the Indian Trusts Act and the decisions of the Travancore High Court reported in 30 TLR 105, 19 TLJ 435, and 28 TLJ 265. There is an earlier decision of the Travancore High Court Krishnan Sankaran v Kesavan Sankaran (29 TLR 179) in which the registry of puthuval land in favour of the mortgagee was held not to enure to the mortgagor on the ground that to hold otherwise would in effect be to hold that where a person in possession of unregistered puthuval mortgaged it to another and the mortgagee obtained possession under the mortgage, the Sirkar was deprived of its discretion to register it in the name of the mortgagee. This reasoning was not approved in the later decisions referred to above. Kanakku Thampi Marthandan Mathevan v Kanakku Thampi Marthandan Sri. Krishnan (30 TLR 105) was a case in which the registry in favour of a mortgagee was held not to enure to the benefit of the mortgagor. Holding that the question in each case was one of fact, it was held: "The question then in every such case is one of fact. If the mortgagee by fraud (10 N. I. A. 540) or unfair or sharp practice or behind the back of the mortgagor obtains an advantage, to the prejudice of the right of redemption, which though not legally due under has yet its root in the mortgage, that advantage must be held for the benefit of the mortgagor. If the mortgagee by fraud (10 N. I. A. 540) or unfair or sharp practice or behind the back of the mortgagor obtains an advantage, to the prejudice of the right of redemption, which though not legally due under has yet its root in the mortgage, that advantage must be 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. We think the second special respondent has shown it in this case and therefore hold that item No. 1 is not redeemable." 6. On the facts it was found that the mortgagor was a party to the proceedings for registry, that he was not prepared to deposit the necessary amount for obtaining registry and that it was with his consent that the mortgagee obtained registry. In Krishnan v Ralpan (19 TLJ 435) it was held that the question was always one of fact as the only question to be decided in such cases was whether the circumstances in which the mortgagee secured the registry were such as to make him liable in equity to surrender it in favour of the mortgagor. It was also held that to import considerations of the absolute right of the Sirkar to register the land in favour of anybody they chose was likely to cloud the issue. On the facts it was held that the mortgagee took no undue advantage of his position as mortgagee to secure the benefit of registry. In Thratharu Namburipad v. Chummaru (28 TLJ 164) the mortgagee did not set up any rival claim against the mortgagor. On the other hand the mortgagor and the mortgagee resisted the Sirkar in the assertion of title by the Sirkar against the mortgagor jenmi and although the mortgagee subsequently submitted to the title of the Sirkar and accepted registry, such registry was not taken in pursuance of any rival claim set up by him against the mortgagor. It was held that in such cases the registry by itself had not the effect of terminating the previous tenancy and the right derived under the Sirkar would not prevail against the jenmi in the enforcement of the rights and obligations accruing from the mortgage transaction. It was held that in such cases the registry by itself had not the effect of terminating the previous tenancy and the right derived under the Sirkar would not prevail against the jenmi in the enforcement of the rights and obligations accruing from the mortgage transaction. This decision, if I may say so with respect, ignores the fact that the mortgagee did not make unfair use of his position to secure the registry. Some of the grounds relied on were that the mortgagor and the mortgagee resisted the Government in the assertion of a title against the mortgagor and that the mortgagee accepted registry of the land, not in pursuance of any rival claim against the mortgagor. The mortgagor was also a party to the registry proceeding. These circumstances in my opinion should take the case out of the scope of section 90 of the Indian Trusts Act. The last decision cited is Parvathiamma v. Cheriyan Cherivan ( AIR 1951 TC 94 ). Following the decision reported in 30 TLR 105 it was held : "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. 556/4B. The fact that Narayanan Aiyappan after ten years of persistent endeavour to get the registry in favour of his tarward 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 TLR 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". Considered in the light of the decisions reported in 30 TLR 105, 19 TLJ 435 and AIR 1951 TC 94 , it is clear that the registry under Ext. Considered in the light of the decisions reported in 30 TLR 105, 19 TLJ 435 and AIR 1951 TC 94 , it is clear that the registry under Ext. II cannot enure to the benefit of the mortgagor, notwithstanding the finding that the whole property described in the plaint schedule is included in the mortgage Ext. A and the persons who got registry had come into possession under the mortgage. At the time of Settlement, patta had not been issued for the whole area comprised in the two cherikkals. Narayanan Kesavan of Agasthanathu tarward applied for registry of the remaining area in their cherikkals but except for making an application, he does not appear to have done anything further. There was an enquiry regarding this area in Cherikkal case No. 42 and Sankaran Neelakantan was the first witness examined. Ext. R is copy of his deposition. He admitted that the cherikkals belonged to Agasthanathu tarwad and that his tarwad was in possession under a kanapattom. The Government were contending that it was puthuval land and the Revenue Supervisor cross examined him. He further admitted that patta granted in Settlement was for 20 paras of land in lekkom 163 and 20 paras in Lekkom 165. He was cross examined by other 1 members of the mortgagee's tarwad and also by a sub-mortgagee. One thing is clear from Ext. R, namely, that Sankaran Neelakantan maintained that the two cherikkals belonged to the mortgagor's tarwad and stated that if the same was to be treated as puthuval land, he was to be given registry. Ext. II is copy of the decision in that case. It is seen that Narayanan Kesavan of Agasthanathu tarwad did not appear in spite of notice given. The Government treated the land as unregistered puthuval and granted registry to members of the mortgagee's tarwad. The question is whether the mortgagee by availing of his position as such gained an advantage in derogation of the rights of the mortgagor. Exts. R and II show that he did not. It is not as though the mortgagee claimed independent title and applied for registry behind the back of the mortgagor. The latter was not prepared to prosecute the matter after filing an application possibly because puthuval registry involved some expenditure of money. Government overruled the claim of title of the mortgagor and decided that the land was puthuval. It is not as though the mortgagee claimed independent title and applied for registry behind the back of the mortgagor. The latter was not prepared to prosecute the matter after filing an application possibly because puthuval registry involved some expenditure of money. Government overruled the claim of title of the mortgagor and decided that the land was puthuval. Having come to the decision that the land was puthuval, it was open for the Government to give registry to whomsoever it chose and Agasthanathu Tarwad was not prepared to take registry. It was in these circumstances that the mortgagee got registry and it cannot be said that the mortgagee took any unfair advantage in these proceedings. On the facts it cannot be held that the case comes under section 90 of the Indian Trusts Act. 7. It follows that the conclusion reached by the lower appellate court is correct and does not call for interference. The second appeal and the memorandum of cross objections are accordingly dismissed, but in the circumstances without costs.