Subramania Iyer v. Thommen George — 1965 DIGILAW 327 (KER)

Judgment :- 1. This is an appeal from the decision in A. D. R. A. No. 27 of 1959 of the Principal Sub-Court of Alleppey. The appellant was the first counter-petitioner in that application. 2. The application which has been allowed was for relief under S.11 of the Kerala Agriculturists Debt Relief Act, 1958. That section embodies the special provision in respect of usufructuary mortgages executed by agriculturists. Sub-section (1) of that section provides that the section subject to the provisions of S.25 with which it is agreed we are not concerned applies to all subsisting mortgages executed by an agriculturist at any time before the commencement of the Act and by virtue of which the mortgagee is in possession of the property mortgaged to him or any portion thereof. 3. There is an explanation to sub-section (1). It is agreed that the explanation is of no consequence to this case. 4. Sub-section (2) of S.11 provides: Notwithstanding that the period of the mortgage has not expired, the mortgagor shall on application be entitled, subject to the provisions of sub-sections (3) and (4), to recover the property mortgaged on depositing in the court (a) one half of the mortgage amount; (6) where payment of interest to the mortgagee has been stipulated for, in respect of the principal amount secured by the mortgage or any portion thereof, in addition to the usufruct from the property, or in respect of any other sum payable to the mortgagee by the mortgagor in his capacity as such and there has been arrears of such interest, such arrears; and (c) the value of improvements, if any, effected subsequent to the date of the mortgage by the mortgagee in the property mortgaged, as determined by the court." The applicant in A. D. R. A. No. 27 of 1959 was not the executant of the usufructuary mortgage with which we are concerned. It was his father who executed that mortgage and it was by succession on the death of his father that the applicant obtained the equity of redemption. 5. The first question for determination is whether the right conferred by sub-section (2) of S.11 is confined to the executant of the mortgage as contended by counsel for the appellant or whether it extends to the heirs, legal representatives and assigns of the mortgagor as well, as contended by counsel for the respondents. 5. The first question for determination is whether the right conferred by sub-section (2) of S.11 is confined to the executant of the mortgage as contended by counsel for the appellant or whether it extends to the heirs, legal representatives and assigns of the mortgagor as well, as contended by counsel for the respondents. The word used in sub-section (2) is "mortgagor", and that word has not been defined in the Act. 6. S.11A of the Act contains the special provisions regarding melpattoms. According to sub-section (1) of that section, the section applies to all subsisting melpattoms granted by an agriculturist before the commencement of the Act for periods of two years or more. Sub-section (2) of that section provides : 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. Explanation, For the purpose of this sub-section 'advance outstanding' means the amount which bears to the total amount of the advance the same proportion as the unexpired term of the melpattom bears to its full term." 7. The expression'mortgagor" which occurs in sub-section (2) of S.11, as already mentioned, is not defined in the Act. The word "mortgagee", however, is defined in S.2 (fff) along with the words "melpattamdar", "debtor" and "creditor". According to S.2 (fff) the expressions "melpattamdar", "mortgagee", "debtor" and "creditor" include the heirs, legal representatives and assigns of the melpattamdar, mortgagee, debtor and creditor respectively, subject to the proviso that in the case of a debtor such heirs, legal representatives and assigns are also agriculturists as defined in the Act. 8. In Krishnan Nair v. Abdu, 1964 KLT. 94 (F.B ), the question whether the right conferred by S.11A was personal to the grantor of a melpattom came up for consideration. The Court said : 'the question is whether, under the terms of S.11 A, the right is personal to the grantor. We think it is. 8. In Krishnan Nair v. Abdu, 1964 KLT. 94 (F.B ), the question whether the right conferred by S.11A was personal to the grantor of a melpattom came up for consideration. The Court said : 'the question is whether, under the terms of S.11 A, the right is personal to the grantor. We think it is. What sub-section (2) of the section says is that the person who granted the melpattom shall, on application, be entitled to terminate the melpattom, and we find it difficult to read into the words, 'the person who granted the 'melpattom' the words 'or his heirs, legal representatives or assigns.' It is fallacious to argue that because the grantor of a melpattom is, or can be regarded as, a debtor and according to S.2 (fff) of the Act the word 'debtor' must be read as including his heirs, legal representatives and assigns, the heirs, legal representatives and assigns of a person who has granted a melpattom must be entitled to make an application under S.11A (2). S.11A does not use the word 'debtor'; all that S.2 (fff) requires is that the word 'debtor' wherever it appears shall, unless the context otherwise requires be read as including the heirs, legal representatives and assigns of the debtor; and even if the grantor of a melpattom be a debtor. S.2 (fff) is hardly relevant for the purpose of determining whether the words 'the person who granted the melpattom' can be read as including the heirs, legal representatives and assigns of such a person. On a plain reading they cannot. And the very fact that the Act defines 'melpattomdar', 'mortgagee','debtor'and'creditor'as including the heirs, legal representatives and assigns of the melpattomdar, mortgagee, debtor and creditor respectively, without enacting a similar definition in respect of the person who granted the melpattom is an indication that the heirs, legal representatives and assigns of the grantor are not included within that expression. And, if we were to hold that persons claiming under the grantor would be entitled to the benefit of S.11 A (2), it would mean that they would be entitled to the benefit even though they are not agriculturists provided the melpattom was granted by an agriculturist. For, the proviso to S.2 (fff) which requires the heirs, legal representatives and assigns of a debtor to be agriculturists if they are to be regarded as debtors would not be available. For, the proviso to S.2 (fff) which requires the heirs, legal representatives and assigns of a debtor to be agriculturists if they are to be regarded as debtors would not be available. It is true that in Raghavan Nair v. Daniel, 1959 KLT. 1232, an assign of a mortgagor was held entitled to make an application under S.11 (2) of the Act. But that was because in ordinary use, especially in relation to their mutual rights and liabilities, the words 'mortgagor' and 'mortgagee' bad long since acquired the meaning assigned to them in S.59A of the Transfer of Property Act as including persons deriving title from the original mortgagor and the original mortgagee although the definition in the section is expressly confined to the Chapter in which it appears in fact the words had been so read even before the definition was introduced. And it must also be remembered that the decision referred to was rendered at a time when S, 2 (fff) which contains this inclusive definition of a mortgagee but not of a mortgagor was not in the Act." 9. In Varkey v. Sankaran, 1965 KLT. 519, Velu Pillai J. had to deal with S.11 of the Act itself. The learned judge referred to the decision mentioned above, and said: "Prior to the decision of the full bench it was held in Raghavan Nair v. Daniel, 1959 KLT. 1232 that a mortgagor's assign is entitled to the benefit of S.11 of Act XXXI of 1958. Before the full bench the question was whether the assignee of the person who granted a melpattom was entitled to the corresponding relief under S.11A of the Act. The full bench relied principally on S.2 (fff)of the Act, which was introduced in it by the amending Act of 1961 and which is a follows: " melpattomdar ", mortgagee', 'debtor' and 'creditor' shall include the heirs, legal representatives and assigns of the melpattomdar, mortgagee, debtor and creditor respectively.' The consideration which weighed with the full bench was, that while a telpattomdar was meant to include his assignee, the grantor of a melpattom was not meant to include his assignee. By parity of reasoning, S.2(fff) gives rise to a similar interpretation of the term 'mortgagor' as distinguished from the term 'mortgagee.' Indeed this was adverted to by Mr. By parity of reasoning, S.2(fff) gives rise to a similar interpretation of the term 'mortgagor' as distinguished from the term 'mortgagee.' Indeed this was adverted to by Mr. Justice Raman Nayar in delivering the judgment of the full bench and was explained as a consideration which was not present when Raghavan Nair v. Daniel, 1959 KLT 1232, was decided. In my opinion the discussion in the judgment of the full bench, applies with equals force to the case of an assign of a mortgagor. I am therefore led to hold, that Raghavan Nair v. Daniel,. 1959 KLT. 1232 can no longer stand and that the respondent, as the assign of the mortgagor is not entitled to the benefit of the Act." 10. In an earlier decision, Kunhappa Kurup v. Madhavi Amnia, 1965 KLT. 789 reported later S.11 came up for consideration before Vaidialingam J. The learned judge referred to the Full Bench decision in Krishnan Nair v. Abdu,1964 KLT. 94, and said: "The learned judges having due regard to the provision? 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 melpattom 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. 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, inasmuch as such a person will satisfy the requirements of the expression 'the mortgagor' occurring in sub-section (2) of S.11. I 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. 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 overruled." 11. The expression "the person who granted the melpattom" in subsection (2) of S.11A must have been used because of the absence of a single word for denoting such a person either in English or in Malayalam. If a single word like mortgagor was not available for a person executing a mortgage, the expression in sub-section (2) of S.11 might very well have been "the person who executed the mortgage". If there is any amomaly in construing the word "mortgagor" in sub-section (2) of S.11 as restricted to the executant of the mortgage and as not including his heirs, legal representatives and assigns, the same anomaly obtains in construing the expression "the person who granted the melpattom" in sub-section (2) of S.11A as restricted to that person and as not including his heirs, legal representatives and assigns as has been done by the Full Bench in Krishnan Nair v. Abdu,1964 KLT. 94. 12. We think the correct conclusion is the one reached by Velu Pillai J. in Varkey v. Sankaran,1965 KLT. 519, namely, that the right granted to a mortgagor in sub-section (2) of S.11 is a right confined to him, that it does not extend to his heirs, legal representatives and assigns, and that the contention of the appellant must prevail. If we are to hold that the expression "mortgagor" in sub-section (2) of S.11 includes his heirs, legal representatives and assigns, the benefit will accrue to them even though they are not agriculturists as there is no inhibition like the one contained in the proviso to S.2 (fff) of the Act. 13. It was common ground that if our conclusion is as stated above, no other question arises for consideration and that this appeal should be allowed. We do so; but in the circumstances of the case without any order as to costs.