Ganapathi Bhatta v. Umavathi — 1965 DIGILAW 187 (KER)

Judgment :- 1. Second Appeal by defendants 1 to 5. 2. This appeal has arisen in a suit for redemption of a usufructuary mortgage, evidenced by Ext. P-6 dated August 30,1879. The appellants, defendants 1 to 5, are the present mortgagees under Ext P-6. That mortgage was executed by Madanakke and her two sons, Marappa and Subbappu. After the death of the former two, Subbappu executed a puisne mortgage evidenced by Ext. P-15 in favour of Pw. 8, whose rights by successive assignments devolved on the present plaintiff. It is by virtue of the title under the said puisne mortgage that the plaintiff has instituted the suit for redemption of the properties from the appellants. Though -various contentions had been raised in defence, some of them have been concluded by prior proceedings. When the suit was before the Madras High Court in S. A. No. 1009 of 1948 their Lordships over-ruled the plea of limitation and held the suit to be within time under Art.148 of the Limitation Act, 1908 So also, the contention that Subbappu, who executed Ext. P-15, was not the same as Subbappu who executed Ext. P-6 is concluded by the concurrent findings of the Courts below, supported by the evidence of Pw. 6 and Pw. 8. The question of compensation for improvements has been left open by the lower appellate court, to be re-assessed under the Kerala Compensation for Tenants Improvements Act, XXIX of 1958. The cross-objections of the respondent-plaintiff challenging the conversion of paddy fields into garden lands being an improvement may be decided at the reassessment of compensation for improvements. The questions that remain for consideration are (1) the validity of the puisne mortgage executed by Subbappu & (2) whether Ext. P-6 mortgage entitles to a fixity under the Kerala Land Reforms Act I of 1964. 3. Counsel relied on Exts. D-20 to D-23 to show that Subbappu had nieces and was not therefore the last survivor of his family. The parties are governed by Aliyasanthanam law, which follows the matrilineal system of succession as in Marumakkathayam. If Subbappu was the last survivor of his line and had nieces in the collateral line only, still the latter may be referred to as his nieces with right to succeed him. But among the documents relied on, Exts. D-20 to D-23, there is none in which Subbappu has named anybody as his niece. Exts. If Subbappu was the last survivor of his line and had nieces in the collateral line only, still the latter may be referred to as his nieces with right to succeed him. But among the documents relied on, Exts. D-20 to D-23, there is none in which Subbappu has named anybody as his niece. Exts. D-22 and D-23 are the plaint and judgment in O.S. No. 178 of 1932 filed by four persons asserting themselves to be members of Subbappu's family. From that fact, a finding that Subbappu had nieces in his line cannot be inferred In the lower appellate court, Mr. M. A. Krishna Rao, counsel for the present appellants (who were respondents 1 to 5 there), has filed a genealogical tree (marked Ext. D25) which shows clearly that Madanakke had only three sons, and no daughters. The two persons whom the appellants, in the course of their evidence, put as sisters of Subbappu are shown in Ext. D-25 as members of a collateral branch only. The present appellants cannot disown Ext. D-25, and that is conclusive that Subbappu was the last member of his line, though the family has other members. 4. Counsel for the appellants contended that Subbappu professed to execute Ext. P-15 as the last survivor of his family and that if it be found that there were other members in the family, Ext. P-15 must be found invalid. I cannot agree. If the members belonged to an Aliyasanthana family, and Subbappu was the Yajman thereof, his alienation, unless set aside in due time, has to be held valid. As observed by the lower appellate Court though Ext. P-15 has been executed in 1924, till the institution of this suit in 1944, that is to say for 20 years, no member of the family is seen to have challenged it. The evidence shows that he was then the seniormost male member in the family. Even if he was not the sole survivor in the family, as it is clear that he was the Yajman (karnavan) of the family at the time, his puisne mortgage has to be held valid. I accept the finding of the Subordinate Judge that Ext. P-15, the puisne mortgage under which the plaintiff claims, is valid and entitles the plaintiff to redeem the suit mortgage on the property. 5. I accept the finding of the Subordinate Judge that Ext. P-15, the puisne mortgage under which the plaintiff claims, is valid and entitles the plaintiff to redeem the suit mortgage on the property. 5. Fixity is claimed under S.10 (v) of Act I of 1964, which reads: "Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, the following classes of persons shall be deemed to be tenants: ............... (v) a person holding land situate in any part of the taluk of Hosdrug or Kasaragod to which the Malabar Tenancy Act. 1929, did not extend, under a transaction described in the document evidencing it as ... illidarwar .... but not being a usufructuary mortgage as defined in the Transfer of Property Act, 1882." Ext. P-6 is styled an illidarwar deed. The question therefore is whether it is a usufructuary mortgage as defined in the Transfer of Property Act, 1882. If it is, it is outside the purview of the aforesaid provision and therefore would not entitle the appellants to fixity; and if it is not a usufructuary mortgage it is equally clear that they would be entitled to fixity. 6. 'Usufructuary mortgage' is defined in S.58 (d) of the Transfer of Property Act, thus: "Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee." Counsel laid stress on the provision in the mortgage deed empowering the mortgagee to improve the property and to have the cost thereof paid along with the mortgage amount at redemption and also on the covenant therein that on any Vishusankramana day, after the expiry of the term of the mortgage, the property might be redeemed on payment of the mortgage amount together with cost of improvements. The contention is that the former provision takes the mortgage beyond the definition of a usufructuary mortgage and the latter covenant implies a personal covenant to pay the mortgage amount and on both counts the mortgage is an anomalous mortgage. The provision for improvement of the property by the mortgagee with right to get the cost thereof along with the mortgage amount at redemption would not, in my view, affect the nature of a mortgage. S.63(a) of the Transfer of Property Act dealing with improvements and payment of compensation therefor is general to all possessory mortgages. Whenever any provision of Chapter IV of the Transfer of Property Act relates to a particular kind of mortgage the Legislature has made it clear in the enactment. Thus S.62 begins with the expression "in the case of a usufructuary mortgage"; S.67 confines foreclosure to English mortgages and mortgages by conditional sale and S.69 limits the right of sale to English mortgage; but S.63(a) does not make any such limitation. I would therefore regard the provisions of S.63(a) as a general incident of mortgages. The fact that improvement of property has been provided for in a usufructuary mortgage would not therefore affect the nature of the mortgage. The distinctive test of a usufructuary mortgage is the absence of a right in the mortgagee to claim mortgage money against the mortgagor. There is no provision in Ext. P-6 entitling the mortgagee to claim the mortgage money from the mortgagor or to bring to sale the property for realisation of the mortgage amount. Considerable reliance was placed on the provision in the deed that on payment of the mortgage money on any Vishu Sankramana day after the expiry of the term (of ten years stipulated in the deed) the mortgage money together with the cost of improvements might be paid in a lump and the property redeemed. The very definition of a usufructuary mortgage in the Transfer of Property Act contemplates, as a feature of the usufructuary mortgage, a provision for retention of possession till payment of the mortgage money. No particular date is stipulated in Ext. P-6 for payment of the mortgage money. There is therefore no obligatory covenant on the part of the mortgagor to pay the mortgage money. In my view, all that is provided in Ext. P-6 is for redemption (which may be quite unnecessary in a mortgage deed). No particular date is stipulated in Ext. P-6 for payment of the mortgage money. There is therefore no obligatory covenant on the part of the mortgagor to pay the mortgage money. In my view, all that is provided in Ext. P-6 is for redemption (which may be quite unnecessary in a mortgage deed). In Sivakami Animal v. Gopala Savundram Ayyan (ILR. XVII Madras 131), Udayana Pillai v. Senthivelu Pillai (ILR. XIX Madras 411) and Kangaya Gurukal v. Kalimuthu Annavi (ILR. XXVII Madras 526), relied on by counsel, the mortgages contained a provision for payment of the mortgage money on a particular date. The Madras High Court construed that to denote an obligation on the part of the mortgagor to pay and a right in the mortgagee to claim and enforce the same and therefore to make the mortgage not usufructuary but anomalous. There is no provision in Ext. P-6 stipulating repayment on any particular date; and therefore the said rulings have to be distinguished on facts. In 1946-I. M.L.J. 90 and AIR. 1962 Madras 308 the Tamil expression "meetukolvenakavum" was translated by the Court as "I shall pay the amount" and therefore to imply a personal covenant to pay. There is no parallel expression in Ext. P-6. It is not disputed that the elements of a usufructuary mortgage as defined in the S.58 (d) are present in Ext. P-6. The contention is only that there are additional provisions therein which by their presence would take the transaction beyond the definition. I do not think that the provisions relied on are such as would affect the nature of the mortgage being usufructuary. The result is that the finding of the Subordinate judge "that Ext. P-6 is a usufructuary mortgage as defined in the Transfer of Property Act and that therefore respondents 1 to 5 (the appellants here) are not entitled to claim fixity of tenure under S.10 (v) of Act I of 1964" has to be accepted. 7. The Second Appeal fails, and has to be dismissed. 8. The cross-objection relates to compensation for improvements. The Munsiff has fixed compensation at Rs. 12089-80 p. and the Subordinate Judge has set aside that and remitted it to be refixed under the Kerala Act XXIX of 1958. The plaintiff objects to the same asserting that conversion of paddy fields into coconut gardens is not an improvement for which compensation would be payable. The Munsiff has fixed compensation at Rs. 12089-80 p. and the Subordinate Judge has set aside that and remitted it to be refixed under the Kerala Act XXIX of 1958. The plaintiff objects to the same asserting that conversion of paddy fields into coconut gardens is not an improvement for which compensation would be payable. 'Improvements' have been defined in the Act XXIX of 1958; & when a matter is governed by statute, no other consideration would be relevant. The question whether the different items, which are claimed but disputed to be improvements, come within the definition will, if required by the plaintiff, be adjudged by the Munsiff hereafter. Under S.13 of the Act, the produces have to be valued in accordance with the tables published by Government; but, such tables are not conclusive and the party is entitled, under the proviso to S.13(2) of the Act, to show that "the average price as nearly as may be ascertainable in the taluk where the land is situated for a period of 10 years immediately preceding the institution of the suit" was different from the value given in the tables and if he proves that the latter alone will apply. The enquiry before the Munsiff as per remit of the Subordinate Judge will be confined to the above two aspects, and in other respects the reports of the commissioner accepted by the Munsiff will stand and be acted upon. 9. In the result, both the second appeal and the cross-objection are dismissed, with costs. Dismissed.