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Periyadath Koman Vs. Kunhirama Warrier - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 647 of 1958
Judge
Reported inAIR1963Ker186
ActsCode of Civil Procedure (CPC) , 1908 - Order 2, Rule 2 - Order 11, Rule 2; Madras Agriculturists' Relief Act - Sections 9A
AppellantPeriyadath Koman
RespondentKunhirama Warrier
Appellant Advocate V.R. Venkitakrishnan, Adv.
Respondent Advocate C.K. Viswanatha Iyer, Adv.
DispositionAppeal allowed
Cases ReferredAbdullah Khan v. Basharat Husain
Excerpt:
- - b-1. the circumstances clearly indicate that the observation can only be for purposes of the agriculturists' relief act and cannot be extended as a bar under order 11, rule 2 c. as well......two suits for rent were instituted after this provision came into force and the defendant in the rent suits claimed the benefits thereof. the defendant being an agriculturist as defined in the madras agriculturists' relief act, the rent had to be deemed interest on the mortgage amount and that is exactly what finds expression in ext. b-1. the circumstances clearly indicate that the observation can only be for purposes of the agriculturists' relief act and cannot be extended as a bar under order 11, rule 2 c.p.c., to the present suit. as the cause of action in the suits, the judgment whereof is ext. b-1, was the lease referred to in that judgment and the cause of action in the present suit is the mortgage which is an independent transaction, there cannot be any bar under order 11, rule.....
Judgment:

Madhavan Nair, J.

1. The appellant is the plaintiff-mortgages who sued to enforce the mortgage evidenced by Ext. A-1, dated 18th August 1943. The suit claim is a sum of Rs. 2,119 made up of the principal mortgage amount (Rs. 2,000) and interest accrued, thereon (Rs. 119). The mortgage was for a term of 10 years. Contemporaneously with the mortgage there was a lease-back of even date. The mortgage deed provided for interest on the mortgage amount at the rate of 90 parahs of paddy annually as the mortgagor was to retain possession of the mortgaged property with him; and the lease deed, as Is seen from Ext. B-1 judgment produced by the defence, provided for a rent of 90 parahs of paddy per annum to be paid to the mortgagee.

2. The defendant contended that the plaintiff-mortgagee having instituted two suits, O. S. Nos. 605 of 1953 and 270 of 1954, for arrears of rent covering a period after the expiry of the term, when the mortgage money had also become due, the present suit is barred by Order 11, Rule 2, C.P.C.

3. The Munsif repelling the contention decreed the suit, but the Subordinate Judge, in appeal, accepting the contention dismissed the suit. Hence this second appeal.

4. Speaking for the Judicial Committee, His Lordship Sir Madhavan Nair in Mohammad Khali Khan v. Manbub Ali Mian, AIR 1949 PC 78 observed:

'The correct test in cases falling under Order 11, Rule 2, is whether the claim in the new suit is in tact founded upon a cause of action distinct from that which was the foundation for the former suit'

and explained the expression 'cause of action' as meaning.

'every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment'.

Ext. B-1 is the consolidated judgment in the aforesaid two suits for rent urged as bar to the present suit. It refers to a lease deed, dated 18th August 1943 executed by the defendant in favour of the plaintiff undertaking to pay a rent of 90 parahs of paddy per annum as the basis of those two suits for arrears of rent. Counsel for the respondent-defendant laid great stress on an observation in that judgment that the rent claimed there was interest on the mortgage amount. It is pertinent to note Sub-section 9 (a) (i) of Section 9-A of the Madras Agriculturists' Relief Act, 1938,

'..... .Where the mortgaged property or, as the casemay be, the portion thereof in the possession of the mortgagee has been leased back to the mortgagor by the mortgagee, the rent due to the mortgagee under the lease..... shall be deemed to be the interest on themortgage debt or the portion thereof attributable to the portion of the property aforesaid and the provisions of Section 8 or 9 read with Section 12, or Section 13, as the case may be, shall apply to the entire debt.'

Admittedly the aforesaid two suits for rent were instituted after this provision came into force and the defendant in the rent suits claimed the benefits thereof. The defendant being an agriculturist as defined In the Madras Agriculturists' Relief Act, the rent had to be deemed interest on the mortgage amount and that is exactly what finds expression in Ext. B-1. The circumstances clearly indicate that the observation can only be for purposes of the Agriculturists' Relief Act and cannot be extended as a bar under Order 11, Rule 2 C.P.C., to the present suit. As the cause of action In the suits, the judgment whereof is Ext. B-1, was the lease referred to in that judgment and the cause of action in the present suit is the mortgage which is an independent transaction, there cannot be any bar under Order 11, Rule 2 to the maintainability of this suit. Counsel for the respondent-defendant relied on the rulings in Diwan Chand v. Ralla Ram, AIR 1926 Lah 559 and Lakshmi Das Gopichand v. Ghulam Nabi, AIR 1935 Pesh 84 where a mortgage and a lease back were held to constitute one transaction and therefore a suit for rent under the lease-back was held to bar a subsequent suit for the mortgage money. But a mortgage and a lease-back of even date have been regarded as two transactions in Partab Bahadur Singh v. Gajadhar Bakhsh Singh, ILR 24 All 521 (PC) Commissioner of Income-tax B and O v. Kameshwar Singh, AIR 1935 P.C.172 Commissioner of Income-tax, Madras v. Ibrahimsa, AIR 1928 Mad 543 (FB) Ram Udhar v. Harichand, AIR 1958 Punj 140, Jagta v. Harichand, AIR 1959, J and K 103 Abdulkhadir v. Subramanya Pattar, AIR 1940 Mad 946, Varkey v. Govindan Nair Madhavan Nair, 1958 Ker LJ 1125: (AlR 1959 Ker 155) Venkappa Bhatta v. Gangadhara Bhatta, 1958 Ker LT 946: (AIR 1959 Ker 112) the last two being decisions of Division Benches of this Court.

Relying on Abdullah Khan v. Basharat Husain, 40 Ind App 31 (PC) Patanjali Sastri, J. (as he then was), with the concurrence of Wadsworth, J. observed in AIR 1940 Mad 946:

'.....though the mortgage and the lease-tack can and must, in a case of this kind, be taken to form part of the same transaction, effect must be given to each according to its terms and the Court cannot, by reading the two together, spell out a transaction totally different In character and incidents.'

Normally, the parties must be held to have intended what they did. If they intended only one transaction between them there is no meaning or significance in their executing a mortgage deed and a contemporaneous lease deed, which in the general law of property denote two different transactions. I am aware that in certain Debt Relief Acts a possessory mortgage and a lease-back are directed to be counted together as a simple mortgage; but that can only be for purposes of those Acts and cannot be extended to cases under Order II, Rule 2 C.P.C. as well. If the mortgage and lease-back be regarded as two transactions it cannot be contended that a suit on the basis of one would bar another suit on the basis of the other, under Order 11, Rule 2 C.P.C.

5. In the result, the second appeal is allowed and in reversal of the decree of the lower appellate Court that of the trial Court is restored. But, in view of the dubious terms of Ext. A-1 which stipulates interest in identical terms as rent in the contemporaneous lease deed, the parties shall bear their respective costs throughout.

6. No leave.


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