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Achutan Nayar Vs. Keshavan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in(1894)ILR17Mad271
AppellantAchutan Nayar
RespondentKeshavan
Cases Referred and Unnian v. Rama I.L.R.
Excerpt:
mortgage - right of a jenmi, who is a judgment-creditor, to sell the kanom right before the expiry of twelve years. - - if the jenmi himself becomes the purchaser, he will be in no better position, except in that he will have a priority of claim as against fourth defendant's panayams for arrears of rent, one of the customary incidents of the kanom......why a jenmi, who is a judgment-creditor, should be in a different position. the right to set off arrears of rent against the kanom debt and value of improvements when the kanom becomes redeemable is an additional security for the benefit of the jenmi, but it does not follow that he cannot sell the kanom at an earlier date if he has obtained a decree for arrears of rent. such sale will not ordinarily put an end to the kanom, but only transfer the kanomdar's interest, such as it is, to the purchaser at the execution sale. if the jenmi himself becomes the purchaser, he will be in no better position, except in that he will have a priority of claim as against fourth defendant's panayams for arrears of rent, one of the customary incidents of the kanom.2. the decree of the lower appellate.....
Judgment:

1. It is contended that the kanom right is not liable to be sold in satisfaction of the decree before the expiry of twelve years from the date of the kanom to first defendant. No doubt, according to the custom of the country, a kanom is, in the absence of a contract to the contrary, redeemable only after the expiry of the period of twelve years. But this custom cannot supersede the general rule of processual law that a judgment-creditor is entitled to attach and sell the judgment-debtor's property. It is not denied that an ordinary judgment-creditor, who is not the jenmi, would be entitled to bring the kanom right to sale even before the expiry of twelve years. We see no reason why a jenmi, who is a judgment-creditor, should be in a different position. The right to set off arrears of rent against the kanom debt and value of improvements when the kanom becomes redeemable is an additional security for the benefit of the jenmi, but it does not follow that he cannot sell the kanom at an earlier date if he has obtained a decree for arrears of rent. Such sale will not ordinarily put an end to the kanom, but only transfer the kanomdar's interest, such as it is, to the purchaser at the execution sale. If the jenmi himself becomes the purchaser, he will be in no better position, except in that he will have a priority of claim as against fourth defendant's panayams for arrears of rent, one of the customary incidents of the kanom.

2. The decree of the Lower Appellate Court must be modified by striking out the words 'free of the encumbrance created by first defendant in favour of fourth defendant.' In other respects the decree is affirmed.

3. The cases referred to at the hearing, viz., Achuta v. Kali I.L.R. 7 Mad. 547 and Kanna Pesharodi v. Kombi Achen I.L.R. 8 Mad. 381 and Unnian v. Rama I.L.R. 8 Mad. 415 are not in point, inasmuch as the question here did not arise in those cases.

4. Under the circumstances of this case we direct each party to bear his own costs of this appeal.


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