Bhaskaran Pillai v. Mathew — 1964 DIGILAW 314 (KER)

Judgment :- 1. In this Civil Revision Petition and the Civil Miscellaneous Appeal, the orders of the two subordinate courts are challenged by the petitioner, who was the applicant in A.D.R.P. No. 14 of 1961 filed under Kerala Act 31 of 1958, and the defendant in O.S. No. III of 1961, on the file of the Changanacherry Munsiff's Court. For purpose of convenience, the parties will be referred in the course of this judgment in accordance with the status occupied by them in the suit O.S. No. III of 1961, either as plaintiff or the defendant, as the case may be. 2. The defendant and his sister had executed a usufructuary mortgage in favour of the respondent-plaintiff under Ex. P-1, dated 9th December 1950. On the same date, there was a lease back in favour of the defendant, who was one of the mortgagors, and also in favour of the husband of the other mortgagor, namely the sister of the defendant. It is also seen that on 28th November 1953 the defendant alone took the entire properties, which were subject to the mortgage under Ex. P-1, on a lease back arrangement. 3. There appears to have been a settlement of accounts in respect of the rent due by the defendant on 14th September 1956; and it is the case of the plaintiff respondent that according to the said settlement of accounts, the defendant had accepted liability to pay the balance amount of rent viz., 200 paras, 5 edangazhies of paddy as on 14th September 1956. On the same date, the defendant also appears to have borrowed from the plaintiff a sum of Rs. 140. To recover both these amounts, as well as arrears that had accrued due up to 1961, the plaintiff instituted the suit O.S. No. III of 1961 on the file of the Munsiff's Court of Changanacherry against the defendant. The defendant, in turn, filed A.D.R.P. No. 14 of 1961 before the same Munsiff's Court, for relief under sub-section (6) of S.11 of Kerala Act 31 of 1958. The relief claimed by the defendant was opposed by the plaintiff; equally, the relief claimed by the plaintiff in the suit was also opposed by the defendant. The defendant, in turn, filed A.D.R.P. No. 14 of 1961 before the same Munsiff's Court, for relief under sub-section (6) of S.11 of Kerala Act 31 of 1958. The relief claimed by the defendant was opposed by the plaintiff; equally, the relief claimed by the plaintiff in the suit was also opposed by the defendant. The trial court held that the defendant is entitled to relief under S.11 (6) of Act 31 of 1958; and on that basis, allowed the claim made by the defendant in A.D.R.P. No. 14 of 1961 and permitted him to pay the amounts under the provisions of Act 31 of 1958. So far as the suit is concerned, it will be seen that the claim for arrears of rent made by the plaintiff was dismissed, because the defendant had been granted relief in A.D.R.P. No. 14 of 1961 under S.11 (6) of the Act. But so far as the claim for payment of cash of Rs. 140 borrowed by the defendant is concerned, the plaintiff was given a decree for that amount together with interest at 6 per cent per annum. 4. The plaintiff challenged that decision of the trial court in A D.R.P. No. 14 of 1961, by taking it up in appeal before the learned District Judge of Kottayam, as A.S. No. 144 of 1962. The plaintiff again challenged the dismissal of his suit, O.S. No. III of 1961, for arrears of rent, before the same learned District Judge in A.S. No. 145 of 1962. The main contention of the plaintiff before the learned District judge appears to have been that the transaction cannot be considered to be one covered by sub-section (6) of S.11 of Act 31 of 1958, because there is no identity of the mortgagor who executed the mortgage, nor is there identity of the properties, which were the subject of the mortgage and lease back arrangement. That is, according to the plaintiff, the mortgage had been executed by the defendant and his sister under Ex. P-1, whereas even the original lease back arrangement of 9th December 1950 was in favour of not only the defendant but also of the husband of the other mortgagor, viz., the sister of the defendant. That is, according to the plaintiff, the mortgage had been executed by the defendant and his sister under Ex. P-1, whereas even the original lease back arrangement of 9th December 1950 was in favour of not only the defendant but also of the husband of the other mortgagor, viz., the sister of the defendant. Therefore it was argued that there is no identity of the mortgagor so as to attract the provisions of sub-section (6) of S.11 of the Act from 9th December 1950. Regarding the later transaction of lease, dated 28th November 1953, it was again urged on behalf of the plaintiff that the lease back is not in favour of the mortgagors, in the sense that it was not in favour of both the defendant and his sister, who had executed the usufructuary mortgage Ex. P-1, and that therefore even the transaction of 28th November 1953 cannot be considered to be a lease back arrangement in favour of the mortgagor, so as to attract the provisions of sub-section (6) of S.11 of the Act. Both these contentions appear to have been resisted by the defendant, on the ground that the properties distinctly and differently owned in independent title by the defendant and his sister, had been the subject of the mortgage under Ex. P-1, and the fact that there was a lease back in favour of the defendant and the husband of his sister, who is the other mortgagor is not enough to take the transaction outside the purview of S.11(6). It was also urged on behalf of the defendant that so far as the lease transaction of 28th November 1953 is concerned, one of the mortgagors has taken the entire properties on lease and therefore it must be considered to be a lease back in favour of the mortgagor, so as to attract the provisions of S.11(6) of Act 31 of 1958. The learned District Judge, after a consideration of all these aspects, is of the view that in this case it cannot certainly be stated that there has been identity of the properties mortgaged with the properties leased, nor is there identity of the mortgagor and the lessee. 5. The learned District Judge, after a consideration of all these aspects, is of the view that in this case it cannot certainly be stated that there has been identity of the properties mortgaged with the properties leased, nor is there identity of the mortgagor and the lessee. 5. That there must be an identity of the mortgagor, who mortgaged the property, and the lessee, has been held by me in the judgment rendered by me in another revision petition wherein I had to consider, under more or less similar circumstances, the question as to whether the transaction of lease executed in favour of only one of the mortgagors and a stranger will attract the provisions of subsection (6) of S.11 of the Act and I have held that S.11(6) will not stand attracted to such a case, because there is no identity of the mortgagor who mortgaged the property and the mortgagor who has taken the property on lease on a lease back arrangement. That there must be an identity of the properties mortgaged and the properties taken on lease, is also concluded by authority of this Court, and which has been referred to by the learned District Judge in his judgment, namely, Kunhiraman Ambalavasi v. Lekshmi Devi Ammal 1960 KLT.180. The learned District Judge in his judgment is of the view that the lease back arrangement of 9th December 1950, which was in favour of one of the mortgagors and the husband of the other mortgagor, cannot be considered as a lease back in favour of the mortgagor and therefore sub-section (6) of S.11 of Act 31 of 1958 will not apply. Even in respect of the later transaction, namely of 28th November 1953, the learned District Judge is of the view that the entire properties have been leased only in favour of one of the mortgagors and therefore it cannot be considered to be a lease back arrangement in favour of the mortgagor, which, in this case, takes in not only the defendant, but also his sister, under Ex. P-1. Therefore, in this view, the learned District Judge, disagreeing with the conclusions arrived at by the trial court, held that the defendant is not entitled to relief under sub-section (6) of S.11 of Act 31 of 1958 in the application filed by him, viz., A.D.R.P. No. 14 of 1961. P-1. Therefore, in this view, the learned District Judge, disagreeing with the conclusions arrived at by the trial court, held that the defendant is not entitled to relief under sub-section (6) of S.11 of Act 31 of 1958 in the application filed by him, viz., A.D.R.P. No. 14 of 1961. The learned District Judge is also of the view that if the defendant is able to claim any relief on the basis of sub-sections (2) to (5) of S.11 of Act 31 of 1958, that alone will have to be investigated; and for that purpose he has remanded A.D.R.P. No. 14 of 1961 to the trial court. So far as the decree in O.S. No. III of 1961 is concerned, the learned District Judge is of the view that the plaintiff's claim to have a decree for arrears of rent as against the defendant, which was refused by the trial court, will have to be reconsidered, having due regard to the provisions of the Act which was then in force, namely Kerala Act IV of 1961. Therefore, in this view, the learned District Judge remanded the suit also for fresh disposal. 6. Against the order remanding A.D.R.P. No. 14 of 1961, the defendant has filed C.R.P. No. 333 of 1963 and against the order remanding the suit O.S. No. III of 1961, the defendant has filed C.M.A. No. 56 of 1963. 7. The question arising for consideration in both these matters is identical, namely as to whether the defendant is entitled to claim relief under sub-section (6) of S.11 of Act 31 of 1958. 8. Mr. Raghava Panicker, learned counsel for the defendant, has urged that, in this case, whatever may be the position regarding the transaction of lease of 9th December 1950, nevertheless the transaction of lease dated 28th November 1953 can certainly be considered to be a lease back arrangement so as to attract the provisions of sub-section (6) of S.11 of the Act, at any rate in so far as the defendant has taken on lease the properties mortgaged by him and to which he was certainly absolutely entitled. Therefore the learned counsel rather strenuously urged that the view of the learned District Judge that the transaction of 28th November 1953 is not a transaction to which sub-section (6) of S.11 will stand attracted is absolutely erroneous. Therefore the learned counsel rather strenuously urged that the view of the learned District Judge that the transaction of 28th November 1953 is not a transaction to which sub-section (6) of S.11 will stand attracted is absolutely erroneous. No doubt the learned counsel was also prepared to take up the position that the lease back arrangement of 9th December 1950, though it was in favour of not only the defendant but also of the husband of the co-mortgagor, should nevertheless be considered to be a lease back in favour of the mortgagor under S.11(6). In this connection, the learned counsel for the defendant pointed out that it has come out in evidence that both the defendant and his sister appear to own the properties in their own independent rights and those properties were mortgaged under Ex. P-1. That is, according to the learned counsel, the transaction under Ex. P-1 should really be considered to be two mortgage transactions - one executed by defendant in respect of the properties belonging to him, and the other executed by his sister in respect of the properties belonging to her independently. 9. Mr. C.K. Sivasankara Panicker, learned counsel for the plaintiff respondent, pointed out that the sister of the defendant, who was also a party to the mortgage Ex. P-1, is not a party either to A.D.R.P. No. 14 of 1961 filed by the defendant, or to the suit O.S. No. III of 1961 filed by the plaintiff; nor has she so far claimed a right to redeem the properties which are the subject of the mortgage Ex. P-1. The learned counsel further pointed out though it may be that the properties comprised in Ex. P-1 are owned by the defendant and his sister under different titles and though it can be stated that they have got independent rights in these properties, the recitals in Ex. P1 will clearly show that all the properties owned, no doubt, by the defendant and his sister have been mortgaged for a common liability undertaken by them under Ex. P-1 and no separate liability is fixed in respect of the properties stated to belong to the defendant or in respect of the properties stated to belong to his sister, in which case, the learned counsel pointed out that the position will have to be considered from a different perspective. P-1 and no separate liability is fixed in respect of the properties stated to belong to the defendant or in respect of the properties stated to belong to his sister, in which case, the learned counsel pointed out that the position will have to be considered from a different perspective. The learned counsel also urged that so long as there is a common liability which can be enforced by the plaintiff as against all the properties comprised in Ex. P1, the view of the learned judge that neither the transaction of lease of 9th December 1950 nor the later transaction of lease, dated 28th November 1953 can be considered to be in favour of the mortgagor, which will take in not only the defendant but also his sister, who have executed the usufructuary mortgage Ex. P-1 and therefore, in consequence, sub-section (6) of S.11 does not apply, is perfectly justified. In fact, the learned counsel also pointed out that the question as to whether the defendant is entitled to relief under sub-sections (2) to (5) of S.11 does not arise at all because the sister of the defendant, who is the other mortgagor under Ex. P-1, has not asked for redemption nor has she claimed any relief under Act 31 of 1958. Therefore the learned counsel pointed out that the order of the learned District Judge, showing a further concession to the petitioner, viz., to consider as to whether the defendant has got any claim which could be made under sub-sections (2) to (5) of S.11, does not require any interference. 10. Frankly, I should state that I was rather very hesitant to accept the contentions of Mr. C.K. Sivasankara Panicker, learned counsel for the plaintiff, in the first instance; because I was prepared to take the view that in this case, when there is certainly evidence to show that the defendant and his sister owned the properties in their own individual rights and title and when both of them have executed the mortgage Ex. P-1, the transaction can be considered, for the purpose of granting relief to the defendant, as really two different transactions of mortgage executed by two different owners of properties. But when the matter was considered further by me, it became very difficult to accept the contention of the learned counsel for the defendant that the transaction under Ex. P-1, the transaction can be considered, for the purpose of granting relief to the defendant, as really two different transactions of mortgage executed by two different owners of properties. But when the matter was considered further by me, it became very difficult to accept the contention of the learned counsel for the defendant that the transaction under Ex. P-1 can be divided in such a manner. No doubt, the defendant and his sister appear to have owned certain items of property in their own independent right and both the parties have executed the usufructuary mortgage in respect of the entire amount covered by Ext. P-1 creating a liability over all the properties. There is absolutely no distinction made in Ex. P-1 regarding any apportionment of the liability in respect of the defendant's properties or in respect of his sister's properties. When that is so, it must be considered that the mortgagor under Ex. P-1, as that expression is understood in law, will take in not only the defendant but also his sister, the co-mortgagor. If that is so, it follows, and especially in the view that I have taken in another revision petition, that the lease back arrangement of 9th December 1950 in favour of the defendant and the husband of the other mortgagor, who is a total stranger to the mortgagor under Ex. P1 cannot be considered to be a lease back in favour of the mortgagor under sub-s. (6) of S.11 of Act 31 of 1958. 11. Same is the position when we come to the lease arrangement of 28th November 1953. No doubt the defendant can be considered to be in possession as lessee of the properties which he is entitled to. No such distinction, as I mentioned earlier, has been made either in Ext. P-1 or in the transaction of lease dated 28th November 1953. 12. Therefore, it follows that the view of the learned District Judge remanding A.D.R.P. No. 14 of 1961 and allowing the defendant to claim relief under sub-sections (2) to (5) of S.11 of Act 31 of 1958, will have to be confirmed and C.R.P. No. 333 of 1963 will have to be dismissed. 13. Coming to CMA. 12. Therefore, it follows that the view of the learned District Judge remanding A.D.R.P. No. 14 of 1961 and allowing the defendant to claim relief under sub-sections (2) to (5) of S.11 of Act 31 of 1958, will have to be confirmed and C.R.P. No. 333 of 1963 will have to be dismissed. 13. Coming to CMA. No. 56 of 1963 it also follows that the view of the learned District Judge that the suit O.S. No. III of 1961, in so far as the trial court has dismissed the claim of the plaintiff to recover arrears of rent, will have to be reconsidered, will also have to be confirmed. But the only further direction that requires to be given by this court will be that while the learned District Judge in his judgment has stated that relief, if any, which the defendant may be entitled to under Kerala Act IV of 1961 will have to be considered in the suit, instead of that direction, the proper direction that has to be given will be that the claim to relief under Kerala Act I of 1964, if any, to which the defendant may be entitled to, will be considered by the trial court when passing a fresh decree in O.S. No. III of 1961. Subject to these observations, C.M.A. No. 56 of 1963 will also have to be dismissed. 14. The result is that both C.R.P. No. 333 of 1963 and C.M.A. No. 56 of 1963 are dismissed. Parties will bear their costs in both the matters. Dismissed.