Kunhappa Kurup v. Madhavi Amma — 1964 DIGILAW 283 (KER)

Judgment :- 1. In this Civil Miscellaneous Appeal Mr. K. Raghavan Nair, learned counsel for the defendant-appellant, challenges the order of remand passed by the learned District Judge, Tellicherry directing the trial court to take up the application filed by the respondent for fresh consideration under S.11 of Kerala Act 31/58. 2. It is seen that the properties comprised in the C.M.A. along with certain other properties were owned in Jenmom by an Illom called Pulikkal Illom. It is also seen that the said Illom executed what purports to be kanom documents dating from 1870 evidenced by Ext. B-1 and ending with Ext. B-5 dated 15-5-1924. Ext. B-1 is of the year 1870 relating to 3 items and Ext. B-2 is dated 27-4-1877 and in the said document two more items are included and those items are the subject of the transactions covered by Exts. B-3, B-4 and B-5 dated 18-8-1893, 5-4-1910 and 15-5-1924 respectively. 3. Those documents are in favour of the defendant's tarwad. There is no controversy that there was a partition in the defendant's tarwad in 1945 and under that arrangement the appellant was apportioned a kanom amount of Rs. 448-3-8 and a kanom amount of the same value was also apportioned to the mother of the respondent. There is also no controversy that the mother's share is accrued to the benefit of the respondent. This respondent has become entitled to a kanom amount of Rs. 896-7-4. It is stated that the said partition document karar provides that the sharers are to accept the apportioned kanom amount when paid and the kanom has to be extinguished accordingly. 4. The jenmi namely Pulikkal Illom executed a Melkanom in favour of one M.K. Kunhi Krishna Kurup evidenced by Ext. A-1 dated 27-2-49. Kunhi Krishna Kurup parted with a portion of his Melkanom right in so far as it related to the share allotted to the respondent and his mother under Ext. A-2 dated 22-6-53 in favour of respondent in these proceedings. 5. On the basis of the rights accruing to him under Ext. A-2, the respondent filed an application seeking relief under S.11 of Kerala Act 31/1958. That application was opposed by the appellant on various grounds. A-2 dated 22-6-53 in favour of respondent in these proceedings. 5. On the basis of the rights accruing to him under Ext. A-2, the respondent filed an application seeking relief under S.11 of Kerala Act 31/1958. That application was opposed by the appellant on various grounds. The first objection that appears to have been raised by the appellant was that the respondent is not a mortgagor under S.11 of Kerala Act 31/1958 and therefore he is not entitled to ask for redemption. The second objection that was raised was that even on the basis that the respondent is entitled to ask for redemption the transaction is taken outside the purview of the Act by virtue of S.25(b) and (c) of Act 31/1958. 6. The further contention that was taken was that the transaction evidenced by Ext. B-5 which is sought to be redeemed is not a usufructuary mortgage creating a creditor-debtor relationship but a kanom transaction that is creating a relationship of landlord and tenant and as such the respondent has no right to ask for redemption inasmuch as the appellant has got fixity of tenure in Kerala Act 1/64. 7. There was another objection taken that the suit being for partial redemption of a mortgage even in the assumption that the transaction is a mortgage it is hit by S.60 of the Transfer of Property Act. Therefore partial redemption should not be granted. 8. One more objection that was raised by the respondent was that the transaction evidenced by Ext. D-5 is not a mortgage transaction in the sense that it creates a relationship of creditor and debtor but a kanom document which could not be the subject of redemption under S.11 of the Act. 9. So far as this last aspect is concerned it is seen that the trial court has not expressed any opinion on this aspect. In fact, it has considered this contention along with S.25 (b) and (c) of the Act. Pausing here for a minute it must be stated that the question of the applicability or otherwise of clause (b) and (c) of S.25 of Act 31/1958 will come into the picture only when the transaction is held to be a mortgage and not a kanom. 10. Pausing here for a minute it must be stated that the question of the applicability or otherwise of clause (b) and (c) of S.25 of Act 31/1958 will come into the picture only when the transaction is held to be a mortgage and not a kanom. 10. The trial court considers the question as to whether the objection of the appellant that the respondent is not entitled to file an application under S.11 inasmuch as the Act confers benefits only on the original mortgagors and not to an assignee under a mortgagor. So far as this aspect is concerned the trial court is of the view that the contention of the appellant cannot be accepted. 11. Then it considers the question as to whether the mortgage transaction is taken out of the purview of the Act either by the application of clause (b) or clause (c) of S.25. Here again the learned Munsiff's of the view that the transaction is not taken outside the purview of the Act because neither clause (b) nor clause (c) of S.25 applies in this case. Therefore objections based upon those provisions by the appellant were also over-ruled. 12. So far as the bar of S.60 of the Transfer of Property Act that the suit is bad inasmuch as it is for partial redemption is concerned it has found favour at the hands of the trial court. The learned Munsiff takes note of the fact that the total kanom amount payable is Rs. 2325 and inasmuch as there has been no splitting up of the mortgage by the mortgagor nor has any part of the equity of redemption enured to any of the mortgagees in this case the trial court comes to the conclusion that the application filed by the respondent under S.11 is really for a partial redemption of the mortgage under Ext. B-5 which is not permitted under S.60 of the Transfer of Property Act. 13. Therefore, the trial court having over-ruled all the other objections raised by the appellant has accepted his contention that the application filed by the respondent under S.11 will have to be dismissed as it is opposed to S.60 of the Transfer of Property Act. Ultimately it is on this point that the trial court has dismissed the application filed by the respondent. 14. Ultimately it is on this point that the trial court has dismissed the application filed by the respondent. 14. The respondent challenged the order of dismissal passed by the trial court in A.S.188/61 before the learned District Judge, Tellicherry. Before the learned District Judge the respondent took up the plea that the application is not barred under S.60 of the Transfer of Property Act. The appellant also attempted to challenge the findings that had been recorded against the appellant by the trial court over-ruling his objections based upon S.25 (b) and (c) of Act 31/1958 that the transaction under Ext. B-5 is not a mortgage but one of Kanom and that the rights conferred under S.11 of the Act enured only to the actual person who executed the mortgage. 15. The learned District Judge takes up for consideration the question as to whether Ext. B-5 evidences a kanom tenure or a mortgage. But unfortunately the learned District Judge does not consider the matter in any great detail. I have already adverted to the circumstance that even the trial court has not expressed any opinion on this aspect. 16. The learned District Judge is of the view that the documents dating from Ext. B-1 and ending with Ext. B-5 provided for the income after deducting the payment of land revenue to be appropriated towards interest and that according to the learned judge will indicate that the relationship that was intended is one of debtor and creditor and not that of a landlord and tenant. 17. Then the learned District Judge takes up for consideration the objections raised by the appellant based upon S.25 (b) and (c) of Act 31/1958. It is seen that so far as clause (b) of S.25 is concerned it appears to have been accepted by the appellant before the learned District Judge that all the transactions are separate and independent transactions and therefore the learned District Judge did not pursue this matter further. But so far as the contention based upon S.25(c) was concerned the learned District Judge is of the view that the provision in Ext. B-5 regarding the payment of land-revenue is only what is required of the mortgagee under S.76(c) of the Transfer of Property Act and therefore, there is no scope for applying S.25(c) of Act 31/1958. 18. But so far as the contention based upon S.25(c) was concerned the learned District Judge is of the view that the provision in Ext. B-5 regarding the payment of land-revenue is only what is required of the mortgagee under S.76(c) of the Transfer of Property Act and therefore, there is no scope for applying S.25(c) of Act 31/1958. 18. Then coming to the question as to whether the application filed by the respondent is bad as being one for partial redemption and as such hit by S.60 of the Transfer of Property Act, the learned judge is of the view after referring to a decision of my learned brother Mr. Justice T.C. Raghavan reported in Thommi and another v. Devasia and others (1962 K.L.J. 660) that the principles laid down in that decision will apply to the case on hand and therefore takes the view differing from the conclusions arrived at by the trial court and ultimately held that S.60 does not operate as bar in this case. Again it is really on this basis that there is no bar of S.60 and having accepted the conclusions arrived at by the trial court on all other aspects referred to above that the learned District Judge set aside the order of the trial court dismissing the application filed by the respondent and sent back the matter for fresh consideration and disposal in accordance with law. 19. Mr. K. Raghavan Nair, learned counsel for the appellant challenges the views expressed so to say by both the subordinate courts regarding the maintainability of the application filed by the respondent and also the views expressed by the two courts over-ruling his client's objections based upon clauses (b) and (c) of S.25 of Act 31/1958. The learned counsel also urged that the very important question that arises for consideration and has not been properly dealt with by the two courts is as to whether the transaction which is sought to be redeemed by the respondent is really a transaction as & by way of mortgage creating a creditor-debtor relationship or whether it is a transaction by way of kanom as that expression was defined under S.3 (14) of the Malabar Tenancy Act. The learned counsel pointed out that if it is held that it is a kanom and not a mortgage then the application filed by the respondent will have to be rejected as not maintainable because S.11 deals only with a redemption of mortgage. The learned counsel also urged that the rights conferred under S.11 of the Act are purely personal to the mortgagor who has actually executed the mortgage and therefore the respondent who is in the position of an assignee-mortgagor is not entitled to maintain the application under S.11. The learned counsel quite naturally stressed the point that the view of the learned District Judge that the suit is not bad for partial redemption and that it is not hit by S.60 of the Transfer of Property Act is erroneous. 20. Mr. M.M..Abdul Khader, learned counsel for the respondent has controverted the stand taken by Mr. K. Raghavan Nair, learned counsel for the appellant. The learned counsel has supported the concurrent views expressed by both the subordinate courts regarding the right of an assignee under a mortgagor to file an application and claim relief under S.11 of Kerala Act 31/1958. The learned counsel also no doubt urged that the view of the appellate court that the transaction evidenced by Ext. B-5 is that of a creditor and debtor and not of a kanom namely that of a relationship of a landlord and tenant is perfectly justified and correct having due regard to the recitals in the document itself. 21. The learned counsel also urged that the question of applicability of S.25(b) need not be considered by this court because even before the learned District Judge the appellant has conceded the position that the transactions beginning from Ext. B-1 and ending with Ext. B-C are independent and different transactions. The learned counsel also urged that there is no scope for applying the provisions of clause (c) of S.25 to the matter on hand because in this case as rightly pointed out by the learned District Judge and the trial court the payment of revenue is the primary liability of the appellant who is in the position of an usufructuary mortgages under S.76(b) of the Transfer of Property Act and therefore it cannot certainly be stated that Ext. B-5 contains any provision for payment of Michavaram. 22. B-5 contains any provision for payment of Michavaram. 22. The learned counsel also urged that the question of the suit not being barred by partial redemption has been correctly decided by the learned District Judge. The learned counsel pointed out that in the partition deed executed in the defendant's tarwad in 1945 there is a specific provision to the effect that the sharers have agreed to accept the apportionment of kanom amount when paid and to have the kanom extinguished according to law. Therefore the learned counsel pointed out that the appellant is not entitled to raise the plea based upon S.60 of the Transfer of Property Act on the basis of the clear provisions contained in the partition deed for 1945 when their shares are sought to be redeemed by the respondent. 23. Alternatively the learned counsel also pointed out on the basis of an observation contained in the judgment of the trial court wherein the trial court has stated that the assignor of the respondent who is the Melkanari under Ext. A-1 was also a kanari under Ext. B-5 i. e. he was already a mortgagee also under Ext. B-5. Therefore the learned counsel pointed out that in this case the provisions of S.60 of the Transfer of property Act are amply satisfied inasmuch as the assignor of the respondent stands in the position of a mortgagor and a mortgagee on the date of the assignment Ext. A-2. Therefore the learned counsel pointed out that there is no question of this application being in any way barred by S.60 of the Transfer of Property Act. 24. Before I consider the question as to whether the transaction beginning from Ext B-1 and ending with Ext. B-5 are really transactions as and by way of mortgage creating a creditor-debtor relationship or whether they are transactions by way of Kanam creating a land-lord tenant relationship and as to whether assuming the transaction is one of mortgage is hit by S.60 of the Transfer of Property Act, it is desirable that I dispose of the other contentions that have been raised by Mr. K. Raghavan Nair, learned counsel for the appellant. 25. The first contention of Mr. K. Raghavan Nair, learned counsel for the appellant is that the respondent being only an assignor under the original mortgagors is not entitled to file an application under S.11 of Act 31/1958. K. Raghavan Nair, learned counsel for the appellant. 25. The first contention of Mr. K. Raghavan Nair, learned counsel for the appellant is that the respondent being only an assignor under the original mortgagors is not entitled to file an application under S.11 of Act 31/1958. According to the learned counsel, the right conferred under S.11 is personal to the mortgagor who has executed the mortgage document and an assignor from him has no rights to seek relief under S.11 of the Act. In this connection, the learned counsel invited my attention to a Full Bench decision of this Court reported in Krishnan Nair v. Abdu (1964 KLT 94 FB.) where the learned judges had to consider as to whether an assignee from the grantor of Melpattam can seek relief under S.11-A of the Act. The learned judges having due regard to the provisions of sub-section (2) of S.11A wherein it is specifically stated: "Notwithstanding that the period of the melpattom has not expired, the person who granted the melpattom shall on application, be entitled to terminate the Melpattom on depositing into court one-third of the advance outstanding". have held that the relief can be claimed under S.11A only by the person who has granted Melpattam and an assignee from such a person has no right at all to seek relief under S.11-A. I do not think that the principle laid down by the learned judges in the above decision has any application to the matter on hand. On the other hand S.11(1) speaks of the provisions being applicable to mortgages executed by the agriculturists and sub-section (2) gives right to the mortgagor to make an application under the circumstances mentioned therein. 26. There is no provision in sub-section (2) of S.11 similar to what is found in sub-section (2) of S.11 A. Anybody who occupies the position or has got the status and liability of a mortgagor in law, in my opinion, is entitled to file the application under S.11 (2) of the Act, in as much as such a person will satisfy the requirements of the expression'the mortgagor' occurring in sub-section (2) of S.11.1 do not find anything in S.11 which compels this Court to come to the conclusion that the rights conferred under that section are only personal to the actual party who executed the mortgage. 27. 27. In fact, such a construction will lead to very anomalous results and inasmuch as there is absolutely no scope for placing any such restriction under S.11 the contention of the learned counsel for the appellant regarding the maintainability of the application filed by the respondent on the ground that he is only an assignor from the mortgagor has to be over-ruled. 28. Then the question is as to whether the transaction, assuming it to be a mortgage stands exempted under clause (c) of S.25 of the Act. It is not really necessary to consider the applicability of clause (b) of S.25 because as I have already pointed out, the appellant has conceded the position before the learned District Judge that the various transactions evidenced by Exts. B-1 to B-5 are independent and separate transactions. Therefore, the question as to whether the succeeding transactions or renewals of the earlier ones does not arise for consideration in these proceedings. 29. S.25(c) no doubt provides that the provisions of the Act will not apply to a mortgage where there is a provision for payment of Michavaram, rent or customary dues. In this case, according to Mr. K. Raghavan Nair, learned counsel for the appellant inasmuch as there is a provision in Ext. B-5 that the defendant's tarwad has to pay the land-revenue due on the land, it amounts to a provision for payment of Michavaram under S.25(c) of the Act, and therefore according to the learned counsel the benefit of the Act is denied to the respondent. Mr. K. Raghavan Nair learned counsel for the appellant no doubt referred me to certain decisions of the Madras High Court where a payment of land-revenue on behalf of a jenmi, by a Kanamdar has been held to be payment of Michavaram and as such coming under S.3(21) of the Malabar Tenancy Act. 30. Mr. M.M. Abdul Khader, learned counsel for the respondent urged that these considerations do not come into the picture in this case because according to his client the transaction is a mortgage and the liability of an usufructuary mortgagee to pay the land-revenue is contemplated under S.76(b) of the Transfer of Property Act and it is only that liability that is referred to when there is a recital to the effect that the defendant's tarwad have to pay the land-revenue. Therefore there is no question of the mortgagee in this case paying land-revenue on behalf of the mortgagor and the mortgagee in this case only discharges a liability which is imposed upon him under the Transfer of Property Act. Therefore there is no question of the document containing a provision for payment of Michavaram. 31. I am in entire agreement with the contention of the learned counsel for the respondent and therefore, the views expressed by the two subordinate courts that there is no provision for payment of Michavaram in Ext. B-5 and therefore that the transaction is not taken outside the purview of the Act on the basis of clause (c) of S.25 will have to be confirmed. 32. The further contention of Mr. K. Raghavan Nair is that the transactions evidenced by Exts. B-1 to B-5 are not transactions by way of mortgage but really transactions of Kanam. No doubt this position is controverted by the learned counsel for the respondent and I have already indicated that the first court has not expressed any opinion on this aspect though the learned appellate judge has considered this matter rather very briefly and expressed the view that the transaction evidences a creditor-debtor relationship. 33. On a proper adjudication regarding the nature of the relationship created between the parties under these transactions namely as to whether there is a creditor and debtor relationship or a landlord and tenant relationship depends on the consideration of the further question as to whether S.60 of the Transfer of Property Act comes into the picture. 34. I am not satisfied that this very important question namely as to the nature of the relationship created under these documents have been properly adjudicated upon by the two subordinate courts. In this connection, the definition of the expression 'mortgage' occurring in the Transfer of Property Act and the definition of the expression'Kanam' occurring in the Malabar Tenancy Act will have to be very seriously considered by the trial court having due regard to the various principles laid down by the Supreme Court as well as this Court in the several decisions regarding the various principles to be applied to find out whether a particular transaction creates a creditor-debtor relationship or a landlord-tenant relationship. In this connection the provisions of S.21 of the Malabar Tenancy Act also will be very helpful in taking a decision one way or other. In this connection the provisions of S.21 of the Malabar Tenancy Act also will be very helpful in taking a decision one way or other. 35. I must also point out that the principles to be taken into account for considering whether a transaction creates a creditor-debtor relationship or a landlord-tenant relationship have been with great respect laid down by the Supreme Court in the decision reported in Ramdhan Puri v. Bankey Bihari (AIR. 1958 SC. 941). Those principles will have to be properly considered and taken into account for considering the nature of the relationship created by these transactions. 36. It is also necessary to state that the respondent has got a right given to him under S.9(1) of the Act 31/58 to show that a particular transaction is really a transaction of debt and that he is also entitled to adduce evidence and prove the nature of the transaction and establish that it is a transaction as and by way of debt. 37. While confirming the decision of both the subordinate courts on all the other aspects namely, the right of the respondent to maintain an application under S.11 and over-ruling the objections of the appellant based upon clauses (b) and (c) of S.25 of Act 31/58 all on the assumption that the transaction is one by way of mortgage the more serious question that will have to be considered by the trial court is the nature of the relationship created between the parties under these transactions beginning from Ext. B-1 to Ext. B-5. 38. If the trial court comes to the conclusion that these transactions evidence transactions as and by way of usufructuary mortgage, then naturally the question as to whether the bar of S.60 is applicable or not has to be considered. For that purpose the claim made by the respondent that on the date of the filing of the application under S.11 before the trial court Kunhikrishna Kurup the assignor of the respondent was occupying a dual capacity of a part owner namely, the owner of a part of the mortgagor's right and as an owner of part of the mortgagee's right will have also to be investigated and a decision will have to be taken regarding the bar of S.60 in accordance with the decision that may be arrived at on this aspect. In this connection, the trial court will also consider as to how far the appellant is entitled to plead the bar of S.60 in view of the recital in the partition Karar of 1945 to the effect that the sharers will accept the apportioned Kanam amount when paid to them and have the Kanam extinguished accordingly. For this purpose the trial court will consider whether there is such a recital in the partition document of 1945 entered into in the appellant's tarwad. 39. For the purpose of adjudicating only these aspects the remand order passed by the learned District judge will be sustained and parties will be at liberty to adduce any additional evidence - oral or documentary in respect of the above two points referred to. To the limited extent indicated above the order of remand is confirmed and the trial court will consider only those aspects which have been indicated above and in accordance with the decision arrived at on these aspects the question of granting further relief under Act 31/58 will be taken up for consideration and adjudicated upon. Parties will bear their own costs.