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(ittiyil Valia Veettil Puthen, Vettil) Parukutty Amma and ors. Vs. (Perumangat Kunhi Othru Amma Son) Govinda Kurup and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 70 of 1962
Judge
Reported inAIR1967Ker49
ActsTrusts Act, 1882 - Sections 90
Appellant(ittiyil Valia Veettil Puthen, Vettil) Parukutty Amma and ors.
Respondent(Perumangat Kunhi Othru Amma Son) Govinda Kurup and ors.
Appellant Advocate P.C. Balakrishna Menon and; K.P. Madhava Menon, Advs.
Respondent Advocate V. Karunakara menon and; K. Sreedharankutty Menon, Advs. for Respondents (Nos. 1 and 2)
DispositionAppeal dismissed
Cases ReferredIn ThakuJaikaran v. Sheo Kumar
Excerpt:
.....in execution of the rent-decree he clearly gained an advantage by availing himself of his position as a..........by the jenmi to the first defendant to pay the arrears of michavaram and renewal fee and take a renewal he defaulted. the jenmi therefore, filed o. s. 214 of 1942 of the district munsiff's court, oltapalam, for recovery of possession of the plaint schedule items impleading the plaintiff and defendants 1 and 2. the plaintiff was then a minor. the suit was decreed. ext. b-2 is the copy of the plaint. ext. b-3 is the copy of the written statement by the second defendant and the plaintiff. ext. b-4 is the copy of the judgment and ext. b ft is the copy of the decree. in execution of the decree the jenmi recovered possession of the plaint items on 12-11-1942. subsequently the first defendant got ext. b-1 a fresh kanam document from the jenmi on 2-6-1944 in respect of the plaint items. the.....
Judgment:

T.S. Krishnamoorthy Iyer, J.

1. The legal representatives of the first defendant are the appellants. The facts necessary for the decision of the questions raised in the, appeal are stated below.

2. The plaint schedule items which are four in number belong in jenm to Kavungal Mana. The Mana executed a kanom demise in respect of the plaint items in favour of Govindan Nair the father of the plaintiff and husband of the second defendant. The michavaram payable to the jenmi by the Kanamdar was 25 parahs of paddy and some sundry items every year Govindan Nair executed a mortgage of the plaint items under Ext. A-1 dated the 2nd of May, 1928, to the flrsl defendant for Rs. 1300. The first defendant was given possession of items 1 and 2. Under Ext. A-1 the first defendant was directed to pay the michavaram due to the jenmi under the kanam document and also to pay the revenue due on the plaint items. Ext. A-1 contained a provision that if before redemption of the mortgage any renewal of the kanam had to be obtained the first defendant should take the same on payment of renewal fee to the jenmi and would be entitled to claim the same at the lime of redemption.

3. In spite of repeated demands by the jenmi to the first defendant to pay the arrears of michavaram and renewal fee and take a renewal he defaulted. The jenmi therefore, filed O. S. 214 of 1942 of the District Munsiff's Court, Oltapalam, for recovery of possession of the plaint schedule items impleading the plaintiff and defendants 1 and 2. The plaintiff was then a minor. The suit was decreed. Ext. B-2 is the copy of the plaint. Ext. B-3 is the copy of the written statement by the second defendant and the plaintiff. Ext. B-4 is the copy of the judgment and Ext. B ft is the copy of the decree. In execution of the decree the jenmi recovered possession of the plaint items on 12-11-1942. Subsequently the first defendant got Ext. B-1 a fresh kanam document from the jenmi on 2-6-1944 in respect of the plaint items. The terms in Ext. B-1 are identical with those in the kanam document executed by the jenmi in favour of Govindan Nair. The suit was filed by the plaintiff for redemption of Ext. A-1 and for the recovery of the plaint items relying on Section 90 of the Indian Trusts Act and treating Ext. B-1 as an advantage gained by the first defendant by availing himself of his position as a mortgagee and in derogation of the rights of the mortgagor.

4. The suit was resisted by the first defendant mainly on the ground that the kanam right in favour of Govindan Nair had been extinguished due to Ext. B-5 decree, that he is not in possession of the properties as the mortgagee under Ext. A-1 but in possession of the property under Ext B-1 and that the plaintiff had no right to redeem.

5. The Courts below look the view that Ext, B-5 decree was occasioned by the default of the first defendant to pay arrears of michavaram and take a renewal of the kanam, the benefit under Ext. B-1 should accrue to the plaintiff in view of Section 90 of the Indian Trusts Act and the first defendant therefore is not competent to resist redemption.

6. Two contentions were raised on behalf of the appellant. The first was that Ext. B-5 was not occasioned on account of any default on the part of the first defendant and so Section 90 of the Indian Trusts Act is not attracted. The second contention was that since the plaintiff and the second defendant were impleaded as the legal representatives of Govindan Nair in Ext. B. 5 suit there is a valid termination of the rights under the kanam in favour of Govindan Nair and so the plaintiff cannot redeem Ext. A-1.

7. To answer the first contention raised by the appellant, it is necessary to see whether Ext. B-5 and delivery of possession of the properties in pursuance of it, were the result of the breach of an obligation of the the first defendant under Ext. A-1. Ext. B-2, the plaint, shows that the jenmi claimed large amounts towards arrears of michavaram. The first defendant was obliged to pay the amount as per the directions in Ext. A-1, It was contended on behalf of the appellant that under Ext. A-1, he had no obligation to take a renewal of the kanam on payment of renewal fee and therefore. Ext. B-5 which was one for eviction on account of failure to take a renewal could not be attributed to his default. Both the Courts below interpreted Ext. A-1 as casting the obligation on the first defendant to take the renewal if there was any default by the jenmi during the subsistence of the mortgage. I accept this interpretation of Ext. A-1 by the Courts below. Even otherwise under Section 21 of the Malabar Tenancy Act, as was in force on the date of Ext. B-6, failure to take a renewal after the expiry of the term in a kanam is a ground for eviction. Even though non-payment of michavaram is not a ground for eviction, when michavaram and revenue are in arrears, the kanamdar has to pay the same along with renewal fee to enable him to get the renewal. It is admitted by the appellant that under Ext A-1 he was obliged to pay the michavaram claimed in Ext. B-5. Even if the appellants' interpretation of Ext. A-1 is accepted, it only follows that Ext. B-5 was occasioned by the default of the first defendant and that of the plaintiff and the second defendant. Even then Section 90 of the Indian Trusts Act will be attracted. In Smt. Basmati Devi v. Chamru Sao, AIR 1964 SC 1707 the question arose whether when the decree and sale in execution of it are brought about by the default of both the mortgagor and the mortgagee the mortgagee can be said to have taken advantage of his position by purchasing the property at the sale. The Patna High Court took the view that unless the sale was brought about by the default of the mortgagee alone mortgagee cannot be said to have taken advantage of his position as a mortgagee in making the purchase. Negativing this view of the High Court Das Gupta, J. observed thus

' In our opinion, the fact that the mortgagor had made a default, does not alter the position that the mortgagee had also defaulted in paying the rent he was liable to pay. By his default he has contributed to the position that a suit had to be brought for arrears of rent and ultimately to the position that the property was put to sale in execution of the decree obtained in the suit. This contribution to the bringing about of the sale was a direct result of his position as a mortgagee. When therefore, he purchased the property himself at the sale in execution of the rent-decree he clearly gained an advantage by availing himself of his position as a mortgagee.

This, in our opinion, is the position in law even if the mortgagee's liability was to payless than the major portion of the rent of the holdings. Whether this would be true even where the portion which the mortgagee is liable to pay is so very small that the property is not ordinarily likely to be brought to sale for that amount, it is unnecessary for us to decide in the present case.'

From the above, it follows that section 90 of the Indian Trusts Act will be attracted even if Ext B-5 was occasioned by a default not wholly that of the appellant Ext. B-5 was occasioned on account of the first defendant also.

8. In my opinion, the first defendant by taking Ext. B-1 from the jenmi could not change the character of his position as a mortgagee as against the plaintiff. The first defendant was in the wrong at any rate in not paying the michavaram which also resulted in the dispossession of the property in execution of the decree Ext B-5. If the holding came back into the hands of the first defendant he cannot take advantage of his own wrong and deprive the plaintiff of his right to redeem. The principle underlying in section 90 of the Indian Trusts Act is that no one can be allowed to benefit by his own wrongful act. The plaintiff was wronged by the mistake of the first defendant. Ext. B-5 could have been averted by the first defendant paying the arrears of michavaram and renewal-fee and taking a renewal of the kanam when the jenmi made demand. That was not done. It is not now open to the first defendant to turn round and say that the plaintiff has lost his right to redeem. The fact that the first defendant was dispossessed in execution of Ext. B-5 and subsequent thereto he took Ext B-1 kanam from the jenmi cannot in my view alter the position. In Kamala Kanta v. Ananda Chandra, AIR 1924 Cal 357, a bench of the Calcutta High Court held that the mortgagees cannot by suffering dispossession and having taken new title from the landlord affect the right of the mortgagors in the property of which they were put into possession under the mortgagee. In Tali Mahton v. Lokhraj Mabton AIR 1928 Pat 17, it was observed :

'The mortgagee being in possession had a certain duty towards the mortgagor and it was his clear duty to maintain his possession as against the landlord. He could not by suffering dispossession put an end to the tenancy and then proceed to take a settlement of the land from the landlord.'

The above two decisions establish the proposition that when once the land comes back to the mortgagee it is immaterial by what process of law the landlord obtained possession.

9. The second contention raised by the appellants was based on the fact that the plaintiff and the second defendant were parties to Ext. B-5 and so there is no scope for the applicability of section 90 of the Indian Trusts Act. This contention also is devoid of any merit. The fact that the plaintiff and the second defendant were impleaded to the action in Ext. B-2 does not detract from the obligations of the first defendant under Ext. A-1 or in any way alter the quality of the first defendant's title founded on Ext. A-1 which was brought about by his own default. In ThakuJaikaran v. Sheo Kumar AIR 1927 All 747 a tenant with a permanent right of occupancy executed a usufructuary mortgage in favour of one Nand Kumar. The deed provided that the mortgagee should pay the rent due to the landlord. The mortgagee committed default and the landlord obtained a decree against both the mortgagee and the mortgagor for arrears of rent and in execution the mortgagee purchased the property in Court auction. In an action for redemption by the heirs of the mortgagor the mortgagee claimed that the execution sale had extinguished the mortgage Sulaiman, J. overruling this contention observed :

'Although, therefore, the Zamindar had obtained a decree jointly against his tenant and his mortgagees, it is apparent that in equity the mortgagor was not really liable, and that if he were made to pay nothing to the Zamindar, he would have equities againsi his mortgagees who had in fact committed default. A wrong was therefore committed by Nand Kumar admittedly'as regards part of the the decree, and in our opinion as regards the whole amount due, and it was in consequence of that wrong that the tenancy was put up for sale and sold. Fortunately for the mortgagor the property was actually purchased by the mortgagee himself who had committed the wrong .... If property is sold owing to the wrongful act and default of the mortgagee himself, he cannot be allowed to claim it on the ground of his own wrong, for no cause of action can arise out of the wrong. In our opinion, the mortgagee undoubtedly committed a breach of his contract when he made default in paying the rent due to the Zamindar. He cannot, therefore, be allowed to gain advantage out of his own breach of that contract. '

10. The same view was expressed inKombi Achan v. K C. Velayudhan 1953-2 MadLJ 17 : (AIR 1954 Mad 1441 Following thesedecisions, I hold that the second contention ofthe appellants cannot be accepted. No otherpoint was raised before me. The second appealis therefore, without substance and is dismissedwith costs.


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