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1966 DIGILAW 109 (KER)

ALIKOYA v. LAKSMI AMMA

1966-05-31

S.VELU PILLAI, T.S.KRISHNAMOORTHY IYER

body1966
Judgment :- 1. One Krishna Kurup, who was the husband of the 1st defendant and the father of the respondents defendants 2 to 4, and to whom the suit property belonged, executed in the year 1939, Ext. B-1, purporting to be a kanom, in favour of one Amina Umma and on the same day gave her also Ext. B-2, a verumpattakaichit, purporting to take the property back on lease. The appellant as the transferee of the rights of Amina Umma, sued Krishna Kurup in O. S.716 of 1949 for arrears of rent, accrued during the years 1120 to 1123, alleging Ext. B-1 to be a kanom. Krishna Kurup contended that Ext. B-1 is a mortgage and claimed the benefit of S.9-A of the Madras Agriculturists Relief Act, Act 4 of 1938. The Court held by Ext. B-4 judgment dated the 26th November, 1949, that S.9-A is not applicable, not being a usufructuary mortgage but only a demise. O. S.78 of 1959 out of which S. A. 160 of 1962 arises, was instituted by the appellant against the respondents, as the legal representatives of Krishna Kurup, for arrears of rent for the years 1132 and 1133. The respondent contended, that Ext. B-1 is a mortgage amenable to the provisions of the Kerala Agriculturists Debt Relief Act, 1958, Act 31 of 1958. They also filed I. A. 2108 of 1959 under S.9 of this Act, for a declaration that Ext. B-1 evidences a transaction of debt. The courts below have disposed of O. S.78 of 1959 and I. A. 2108 of 1959 by common judgments. S. A. 214 of 1962 is directed against the judgment in appeal, in so far as it related to I.A.2108 of 1959. The two courts have held, that Ext. B-1 is a mortgage and not a kanom, and dismissed the suit for rent and allowed the application. 2. In these second appeals, learned counsel for the appellant pressed before us four contentions, first that Ext. B-1 is a kanom as it purports to be and not a mortgage as it is contended to be by the respondents, second that Act 31 of 1958 is not applicable to Ext. B-1 by virtue of S.25 (c) of that Act, third that the decision in Ext. B-1 is a kanom as it purports to be and not a mortgage as it is contended to be by the respondents, second that Act 31 of 1958 is not applicable to Ext. B-1 by virtue of S.25 (c) of that Act, third that the decision in Ext. B-4 that it is a kanom is conclusive and cannot be reopened under S.9 of the Act and fourth that in I. A. 2108 of 1959 there being merely a prayer for a declaration that Ext. B-1 is a transaction of debt without a prayer for consequential reliefs, envisaged by S.9, the application is not maintainable. On account of the third contention, these appeals have been referred for decision by a division bench. 3. We proceed to examine these contentions seriatim. On the first contention it has to be noted, that on the same date there had been a kanom Ext. B-land a lease back Ext. B-2, which form parts of the same transaction. Notwithstanding the use of the terms "kanom" and "kanartham" and others in Ext. B-lwhich prima facie point to the kanom nature of the transaction, the fact that there has been a lease back to the grantor as part of the same transaction is, we think, conclusive that there was no demise under it, much less a demise for enjoyment. This is sufficient to take Ext. B-loutside the purview of the definition of kanom, whether under the Malabar Tenancy Act or of the Kerala Land Reforms Act, Act I of 1964. We hold accordingly. S. 25 (c) of Act 31 of 1958 provides: "Nothing contained in this Act shall apply to mortgages having any one or more of the following incidents: xxxxxxxxxxx (c) there is provision for payment of michavaram, rent or customary dues" Ext. B-lrecited, that after deducting the interest on the kanom amount of Rs. 100, the pattom of the property is as 12, and provided that this sum may be paid either directly to the grantor or may be applied towards the payment of revenue for the property. Unless there is a provision in Ext. B-1 for the payment of michavaram or rent either in express terms or by necessary implication, S.25 (c) cannot come into play. All that is in Ext. B-1is, that after deducting the interest on the kanom amount, the annual income of the property left a balance of as. Unless there is a provision in Ext. B-1 for the payment of michavaram or rent either in express terms or by necessary implication, S.25 (c) cannot come into play. All that is in Ext. B-1is, that after deducting the interest on the kanom amount, the annual income of the property left a balance of as. 12, and this was to be paid or applied as stipulated. There is nothing in Ext. B-1 to indicate, that this was to be treated as rent or michavaram payable to the mortgagor, as a special term or condition in the mortgage transaction. We cannot hold, that whenever a mortgage deed provides, that the balance of the income of the mortgaged property after deducting the stipulated interest on the mortgage amount, which the mortgagee is liable to account for, is made payable, the mortgage is hit by S.25 (c). Such payment constitutes what is generally known as purapad. That purapad is distinguishable from rent or michavaram, has been held in Vasudevan Nambudri v. Raman Nambudri AIR. 1940 Madras 939. A learned judge of this court also held so in Kunhukutty Amma v. Kumaranunni Nair 1961 KLT, 451, The contention based on S.25 (c) has therefore to be repelled, 4. The third contention relates to the applicability of S.9 of Act 31 of 1958. The non-obstante clause in the Section refers to "anything in the Indian Evidence Act, 1872, or in any other law for the time being in force". In two decisions of this court by single judges rendered under analogous provisions, S.43 of the Malabar Tenancy Act, 1929 in one case, and S.12 of Act 1 of 1964 in the other, viz., Chirutha v. Kunhiraman Nayar (1962 KLJ. 30) and Kurian v. Chacko (1965 KLT. 453) it was held that the word "law" in the non-obtante clauses in them, does not include decrees or decisions of courts binding on the parties. It seems unnecessary to interpret the term "law" in S.9, as we are satisfied, that the pronouncement in Ext. B-4 is not conclusive on the parties, judged by the principles of res judicata. In the former litigation, the question really and substantially in issue was, whether Ext. B-1 is a mortgage amenable to the provisions of Madras Act 4 of 1938, although the issue framed was, whether it is a mortgage or a kanom and the finding was that it is a kanom. In the former litigation, the question really and substantially in issue was, whether Ext. B-1 is a mortgage amenable to the provisions of Madras Act 4 of 1938, although the issue framed was, whether it is a mortgage or a kanom and the finding was that it is a kanom. The matter really and substantially in issue in the present suit as well as in I. A. 2108 of 1959, is whether it is a mortgage or more properly, it is a transaction of debt amenable to the provisions of Act 31 of 1958. The provisions of this Act and the Madras Act are not in pari materia and the decision rendered under the Madras Act cannot be considered to be an adjudication of the rights of the parties under the Act 31 of 1953. Going through Ext. B-4, it is seen that what was considered chiefly was whether Ext B-1 is a usufructuary mortgage for the purpose of Madras Act 4 of 1938. In pronouncing it to be a kanom, whether Ext. B-1 can be held to be a demise for enjoyment in view of Ext. B-2, does not appear to have been considered; but that is a different matter. We come to the conclusion, that the contention of the respondents that Ext. B-1 is a transaction of debt by way of mortgage, is not concluded by Ext. B-4. 5. The last contention is, that I. A. 2108 of 1959 being only for a declaration that Ext. B-4 is liable to be reopened, is not maintainable. In the view we have taken, the appellant need not have Ext. B-4 reopened. The respondents can rely on S.9 and prove that Ext. B-1 is a transaction of debt. The lower courts have dismissed the suit for arrears of rent, and at the same time not applied any of the provisions of Act 31 of 1958. If as held, Ext. B-1 is a transaction of debt amenable to the provisions of Act 31 of 1958, it was open to the court to treat the application as ancillary to the written statement and to proceed to deal with the case under the latter part of S.9 by passing an order in conformity with the provisions of the Act. To this course the respondents' advocate has also agreed. 6. The result is, that while we confirm the finding, that Ext. To this course the respondents' advocate has also agreed. 6. The result is, that while we confirm the finding, that Ext. B-1 evidences a transaction of debt by way of mortgage amenable to the provisions of Act 31 of 1958. we direct the trial court to proceed to give the necessary relief under the Act. In the nature of the contentions raised and the questions involved, we direct the parties to bear their costs throughout. Further costs to be incurred will be in the discretion of the lower court. To the extent indicated above, the decree under appeal is modified and the case sent back and it is confirmed in other respects.