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Kizhekke Kizhukkott Kunhothi and anr. Vs. Payikkat Mammad Koya and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported in(1948)2MLJ293
AppellantKizhekke Kizhukkott Kunhothi and anr.
RespondentPayikkat Mammad Koya and ors.
Cases ReferredMayan Kutti v. Kunhammad
Excerpt:
- - ) which according to him is still good law and a later decision of this court in gopalan v. 8. it is now well settled by the decision of the full bench in virupaksham v. this decision, on which strong reliance was placed by the counsel for the respondent, does not deal with the right of redemption of a kanom, as the suit there was based only on an ordinary lease. vallabha valia raja (1902)12mlj128 which is no longer good law, as it has been overruled by the decision of the judicial committee in raghunath singh v. 15. an examination of the relevant provisions of sections 5 and 6 of the act shows clearly that there is nothing therein which can be said to operate to extinguish the right of redemption which right is conferred upon the mortgagor by enactment and of which he can only be.....order1. the question raised in this second appeal is whether a second suit for redemption of a kanom is maintainable after the right of the plaintiff to execute the decree in the first suit had become barred by limitation. if there is no complication of the provisions of the malabar compensation for tenants' improvements act, 1899 (i of 1900), in view of the decision of the privy council in raghunatha singh v. hansraj kunwar (1934) 67 m.l.j. 813 : l.r. 61 l.a. 362 : i.l.r. 56 all. 561 (p.c.) overruling the decision of a full bench of this court in vedapuratti v. vallabha valia raja (a case of kanom) the answer must be in the affirmative. in viroopaksham v. chem,bu mayar the subsequent full bench had left open the question of the effect of the provisions of the act on the decision of.....
Judgment:
ORDER

1. The question raised in this second appeal is whether a second suit for redemption of a kanom is maintainable after the right of the plaintiff to execute the decree in the first suit had become barred by limitation. If there is no complication of the provisions of the Malabar Compensation for Tenants' Improvements Act, 1899 (I of 1900), in view of the decision of the Privy Council in Raghunatha Singh v. Hansraj Kunwar (1934) 67 M.L.J. 813 : L.R. 61 L.A. 362 : I.L.R. 56 All. 561 (P.C.) overruling the decision of a Full Bench of this Court in Vedapuratti v. Vallabha Valia Raja (a case of kanom) the answer must be in the affirmative. In Viroopaksham v. Chem,bu Mayar the subsequent Full Bench had left open the question of the effect of the provisions of the Act on the decision of Raghunath Singk v. Hansraj Kunwar (1934) 67 M.L.J. 813 : L.R. 61 L.A. 362 : I.L.R. 56 All. 561 (P.C.) as on the facts of that case the plaintiff in the earlier suit was different from the plaintiff in the later suit, though it definitely laid down that the decision in Vedapuratti v. Vallabha Valiya Raja was overruled by Raghunath Singh v. Hansraj Kunwar1. Under Section 60 of the Transfer of Property Act, the right of redemption is extinguished by the Act of parties or by a decree of Court. There is no question here of the extinguishments of the right of redemption by act of parties. The decree in the earlier suit is not produced and there is nothing to indicate in the admission of the plaintiff in the plaint relied on by the defendant, that the decree operated to extinguish the right of redemption. Among the decisions relied on in the judgment of the Court below Mayan Kutti v. Kunhammad (1917) 34 M.L.J. 167: I.L.R. 41 Mad. 641 was before the decision in Raghunath Singh v. Hansraj Kunwar (1934) 67 M.L.J. 813 : L.R. 61 L.A. 362 : I.L.R. 56 All. 561 (P.C.) and it practically followed the Full Bench decision in Vedapuratti v. Vallabha Valiya Raja . since overruled by the Privy Council. Further the suit was based in that case on a lease and does not appear to be one for redemption of a kanom. In Gopalan v. Sankaran Nair (1945) I M.L.J. 326 again the suit was based in a lease and was not one for redemption. No doubt the Malabar Compensation for Tenants' Improvements Act brings within its purview suits for redemption; but the provisions of that Act are intended in my view to provide for a final determination between the parties of the amount payable on redemption taking into account the mortgage amount and the value of the improvements and arrears, if any, of rent and do not regulate the right of redemption which is entirely governed by Transfer of Property Act. A suit of this description is always treated as one for redemption and not as a suit between the lessor and the lessee. Even the Court-fee is levied under Section 7(ix) of the Court-Fees Act and not under Section 7(xi)(cc). Of course, if a decree is once passed and if the plaintiff is not otherwise entitled to file a second suit for redemption he is bound to work out his rights under the decree including the revaluation of the improvements and arrears of rent accrued due since the date of the decree in execution of that decree and a separate suit for that purpose is barred under Section 6 (4) of the Act. That is no indication of the extinction of the right of redemption. The fact that a single decree is passed in such a suit not only for the mortgage amount, but also for improvements and arrears of rent does not affect the question, as there is nothing in such a decree providing that in default of payment the right of redemption is extinguished. In the words of the Judicial Committee in Raghunath Singh v. Hansraj Kunwar (1934) 67 M.L.J. 813 : L.R. 61 L.A. 362 : I.L.R. 56 All. 561 (P.C.)

the right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose, and strictly complied with.

As the question is an important one and is of frequent occurrence, I think there should be an authoritative decision by a Bench. The matter will be placed before the Honourable the Chief Justice for orders.

2. On this reference the appeal came up before the Bench and the Court delivered the following

3. The question raised in this second appeal is whether a second suit for redemption of a kanom is maintainable after the right of the plaintiff to execute the decree in the first suit had become barred by limitation. As the question is an important one and is of frequent occurrence the second appeal has been posted for decision by a Bench.

4. A brief resume of the facts is necessary to appreciate the contentions raised by the parties. The property in the suit which originally belonged to the father of the 4th defendant was demised in favour of defendants 1 and 2 under a kanom marupat dated 4th June, 1916. Defendants 1 and 2 were enjoying the lands under the said marupat. The jenm right of the 4th defendant was later on purchased by the plaintiffs in the present action, under a registered deed dated 7th October, 1926. They filed a suit O.S. No. 375 of 1931 on the file of the Court of the District Munsiff, Quilandy, against defendants 1 and 2 for surrender of the possession of the property demised, together with the arrears of purappad due from 1 ith February, 1927, to nth February, 1931. That suit was for redemption of the kanom demise. The plaintiffs offered to pay the kanom amount of Rs. 240 and also the value of the improvements made by the kanomdars and claimed a set-off of the arrears of rent towards the amounts due to the kanomdars as aforesaid. They obtained a decree on 9th September, 1932, wherein it was declared that the kanomdars were entitled to the kanom amount of Rs. 240 and to the value of the improvements Rs. 1,110-3 4 and that the plaintiffs were entitled to arrears of rent and costs and also future rent at the rate of Rs. 50-12-5 a year from Makaram 1106 till delivery of possession or until the expiry of three years from the date of the decree. A set-off was allowed by the decree and the plaintiffs were directed to pay into Court, on or before the 9th of March, 1933, or any later date upto which time for payment may be extended by the Court, the balance after set-off. It was also provided that for the balance, if any, due to the plaintiffs the kanomdars would be liable. Clause 3 of the said decree provided that

in default of payment as aforesaid, the 1st defendant therein may apply to the Court for a final decree that the plaintiffs shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the schedule.

The said decree was, however, never executed by the decree-holders and the kanomdars continued to be in possession and enjoyment of the properties. The decree-holders therein have now instituted the present suit O.S. No. 1299 of 1943 on the file of the District Munsiff's Court, Quilandy, out of which this second appeal I arises, praying for the ascertainment of the value of improvements made by the kanomdars in possession of the property and seeking a decree for possession on their paying info Court the kanom amount and the value of the improvements, and they claimed a set-off of the arrears of purappad from January-February 1928 to 11th January 1943 towards the amounts that may be found due from them to the kanomdars. They also claimed future rent till the date of surrender of the properties. In paragraph 5 of their plaint they refer to the earlier suit O.S. No. 375 of 1931 and state that their petition for extension of time for the deposit of the kanom amount and the value of the improvements allowed by that decree had been dismissed by the Court and it became impossible to deposit the same for the time being. In paragraph 6 it is stated that the property is even now being held and cultivated and also caused to be cultivated by defendants 1 and 2 under the aforesaid marupat and no pattam has been received by them ever since 1928. Paragraph 7 avers that even if the J2 year period has elapsed since the date of the decree in O.S. No. 375 of 1931 this suit is by no means barred by limitation.

5. It is stated in paragraph 12 that the cause of action arose on nth June, 1928, when the term of the lease expired and on nth February, 1928, when the pattam was allowed to fall into arrears. The Court-fee paid is as on a suit for redemption of a mortgage for Rs. 240 the amount of the kanom. In set terms there is no reference in the plaint to a right of redemption as in the case of an ordinary mortgage. The plaint, however, is substantially a suit for redemption of the kanom and prays for a decree in accordance with the provisions of the Transfer of Property Act and the special provisions of the Malabar Compensation for Tenants' Improvements Act (Madras Act I of 1900). The plaint was instituted on 28th December, 1943. The main defence raised by the written statement of the contesting defendants was that this second suit for recovery of possession along with arrears of pattam on the strength of the kanom marupat is not sustainable because of the existence of the decree in the earlier suit, O.S. No. 375 of 1931, and that the only right of the plaintiffs is to work out that decree in execution and as the execution of that decree has become barred by limitation the plaintiffs cannot now obtain possession by a second suit, for redemption or for possession whatever it may be.

6. Before the District Munsiff, Quilandy, the decree in O.S. No. 375 of 1931 was not produced and hence he held that it was not shown that by the terms of that decree the second suit for redemption was barred. He found that the value of the improvements amounted to Rs. 696-12-7 and that the arrears of rent payable by defendants to the plaintiffs after setting off the kanom amount of Rs. 240 and the value of improvements came to Rs. 144-8-7. He accordingly passed a decree that the defendants in possession of the properties do surrender possession to the plaintiffs with all improvements thereon free from the encumbrances if any created by them. The decree also directed that defendants 1 and 2 the kanomdars, do pay plaintiffs the said arrears of rent Rs. 144-8-7 with subsequent interest thereon and also future rent at Rs. 50-4-0 a year till date of delivery of possession or until the expiry of three years from the date of the decree whichever event occurs first. The first defendant appealed against this decree to the District Court of North Malabar. The learned District Judge held that the admissions in the plaint set out earlier sufficiently show, though the decree itself was not before the Court that the right of redemption had become extinguished as the first decree was not executed in time and was allowed to become barred. He further held that although a second suit for redemption would lie in ordinary cases of mortgages, notwithstanding that a decree in an earlier suit for redemption has been allowed to become barred by not executing the same in time, still the position was different with respect to the redemption of a kanom demise by reason of the special provisions of the Malabar Compensation for Tenants' Improvements Act. He followed the decision in Mayankutti v. Kunhammed I.L.R. 56 All. 561 (P.C.) which according to him is still good law and a later decision of this Court in Gopalan v. Sankaran Nair : AIR1945Mad197 . In this view he allowed the appeal and dismissed the suit with costs. The plaintiffs have preferred this second appeal and contend that the view of the learned District Judge is erroneous and that the decision of the Judicial Committee in Raghunath Singh v. Hansraj Kunwar is equally applicable to cases of redemption of kanom demise and that there is nothing in the Malabar Compensation for Tenants' Improvements Act which necessitates a contrary view.

7. Before us there is an application by the respondents to receive by way of additional evidence a certified copy of the decree in O.S. No. 375 of 1931 on the file of the District Munsiff's Court, Quilandy. Mr. C.K. Viswanatha Aiyar, counsel for the appellants, does not oppose the application. As we feel that a copy of the decree is necessary to enable us to pronounce judgment, we have allowed the application and directed that the said certified copy of the decree may be received as additional evidence. Relevant portions of the said decree have been extracted earlier in this judgment.

8. It is now well settled by the decision of the Full Bench in Virupaksham v. Chembu Nair : (1937)1MLJ83 that the earlier decision of the Madras High Court in Vedapuratti v. Vallabha Valiya Raja : (1902)12MLJ128 must be taken to have been overruled by the decision of the Privy Council in Raghunath Singh v. Hansraj Kunwar . Under Section 60 of the Transfer of Property Act the right of redemption can be extinguished only either by the act of the parties or by decree of a Court. As stated by their Lordships In Raghunath Singh v. Hansraj Kunwar .

The right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose, and strictly complied with.

There is no question here of extinguishment of the right of redemption by the act of parties. The decree in the earlier suit which has now been received by way of additional evidence does not show that any right of redemption is extinguished. Clause 3 of the said decree gave liberty to the kanomdars to apply to the Court for a final decree in default of payment of the redemption amount but there is nothing to show that any such application for the passing of a final decree was ever made or that such a decree was ever passed. It would follow therefrom that there is no extinguishment of the statutory right of redemption either by the act of the parties or by decree of the Court. This suit for redemption therefore must be held to be sustainable by reason of the decision of the Judicial Committee aforesaid if we treat the present suit as an ordinary suit for redemption of an ordinary mortgage, not complicated by the provisions of the Malabar Compensation for Tenants Improvements' Act of 1900.

9. It is however contended by Mr. Venkatachala Sastri, counsel for the respondent that the decision in Raghunath Singh v. Hansraj Kunwar is not applicable to suits for redemption of Malabar kanoms in view of the fact that the kanom is not a mere mortgage but is mainly a lease. He contends that the provisions of the Transfer of Property Act as regards redemption of mortgages will not apply and even if a kanom partakes of the character of a mortgage to some extent a suit in ejectment of the Kanom lessee is exclusively governed by the provisions of the Malabar Compensation for Tenants' Improvements Act and that the provisions of Sections 5 and 6 thereof would preclude a second suit in ejectment by the jenmi where there has already been a decree for redemption in his favour in an earlier suit on the same kanom marupat and such decree has been allowed to become time-barred without any execution proceedings being taken thereunder. As regards the first contention that the kanom marupat is merely a lease or a special kind of tenure and not a mortgage in any real sense, it is now too late to uphold such a view. That kanom is a mortgage and is liable to be redeemed as such has repeatedly been recognised and it is sufficient to refer to the decision in Ramunni v. Brahma Datta I.L.R. (1892) Mad. 366 which deals with the question of the sustainability of a second suit for redemption of a kanom where an earlier decree for redemption has been allowed to become barred.

10. Even in Vedapuratti v. Vallabha Valiya Raja : (1937)1MLJ83 where a Full Bench of this Court had held that a second suit for redemption would not lie in similar circumstances on the ground of res judicata the suit was for redemption of a Malabar kanom. A Bench of this Court has held in Kanna Kurth v. Sankara Varma Raja (1920 40 M.L.J. 282: I.L.R. 44 Mad. 344 that a kanom is an anomalous mortgage within the meaning of Section 98 of the Transfer of Property Act and that a kanom deed requires attestation for its legal validity. For purposes of stamp duty payable on the instrument of kanom it has been treated as a usufructuary mortgage. See Reference under Stamp Act, Section I.L.R. (1899) Mad. 164.

11. The Court-fee payable upon a suit for redemption of kanom is also under Section 7, Clause (ix) of the Court-fees Act. See Mooppil Nair v. Ammalu Amma (1926) M.W.N. 324 and Zamorin of Calicut v. Narayana I.L.R. (1882 Mad. 284. In second appeal No. 1503 of 1928 it was held that a clause in a kanom document that if the kanom was not redeemed at the end of the term the transaction should operate as a sale was a clog on the equity of redemption and therefore invalid. The contention that the provisions of the Transfer of Property Act as regards the right of redemption and other allied provisions regarding mortgages simplieitor would not govern the rights of parties under a kanom demise cannot, therefore, be sustained. This substantive right of redemption provided by Section 60 of the Transfer of Property Act is available to the jenmi or a person claiming through him even as regards kanom documents. There is nothing in the provisions of the Malabar Compensation for Tenants' Improvements Act, 1899, Madras Act I of 1900, to take away the right of redemption which is available to the mortgagor under Section 60 of the Transfer of Property Act. The first contention of the counsel for the respondent is, therefore, repelled.

12. The more difficult question, however, whether the provisions of the Madras Act I of 1900 would preclude the sustainability of a second suit for redemption of a kanom in circumstances stated above, falls to be determined. In the Full Bench decision in Viroopaksham v. Chembu Nayar : (1937)1MLJ83 the question was referred to but it was unnecessary for the Full Bench to deal with it because on the facts of the case before the Full Bench the earlier decree for redemption which had become barred by limitation was in a suit by a melcharthdar while the later suit was by the jenmi. It was pointed out that as the jenmi was not the plaintiff in the former suit, there was no decree in his favour and that he had an independent right of his own to redeem the kanom, at any rate, in cases where the melcharthdar had precluded himself by his conduct from exercising the right of redemption. In the present case, however, the plaintiffs in the later action were the plaintiffs in the earlier suit who had obtained a decree for redemption which they allowed to become barred by limitation. The question which was left open by the Full Bench arises for decision now and has to be considered.

13. Learned Counsel for the respondent relies on the decision in Mayan Kutti v. Kun-hammad (1917) 34 M.L.J. 167 : I.L.R. 41 Mad. 641 where the plaintiff's father had sued the defendants on a lease deed dated 1st September, 1871, and had obtained a decree in ejectment on 22nd August, 1895. That decree was allowed to become time barred. Long afterwards on 15th June, 1914, the plaintiff filed a suit in ejectment against the tenants who continued to be in possession under the original lease notwithstanding the earlier decree. The suit was dismissed by the District Munsiff and the District Judge on appeal on the ground that it was barred by limitation viewed as a suit on a lease by a landlord against a tenant for the recovery of possession after the determination of the tenancy. It was contended that the suit was also based on title, apart from the lease and that it was in time. That contention was also negatived on the ground that more than 12 years had elapsed even from the date of the decree in the earlier suit. On second appeal this Court held that the suit was not sustainable as the cause of action had merged in the earlier decree and that the remedy of the plaintiff was only to work out that decree in execution and that if he had not enforced his decree his rights are gone. The earlier decision of this Court in Kutti Ali v. Chindan I.L.R. (1900) Mad. 629 was dissented from and was regarded as overruled by the later Full Bench decision in Vedapuratti v. Vallabha Valiya Raja : (1902)12MLJ128 . The decision pointed out that the scheme of the Madras Act I of 1900 was to leave the decree passed under the Act for ejectment on payment of compensation, to be governed by the law of limitation with regard to the execution of decrees, and that it was not intended to interfere with the general principle, that a man who sues on his cause of action and obtains a decree and allows that decree to become barred has no further remedy. This decision, on which strong reliance was placed by the counsel for the respondent, does not deal with the right of redemption of a kanom, as the suit there was based only on an ordinary lease. Moreover this decision proceeds on the authority of the Full Bench decision in Vedapuratti v. Vallabha Valia Raja : (1902)12MLJ128 which is no longer good law, as it has been overruled by the decision of the Judicial Committee in Raghunath Singh v. Hansraj Kunwar (1934) 67 M.L.J. 813 : 1934 L.R. 61 IndAp 36 : I.L.R. 56 All. 561. If there is a sustantive right of redemption in favour of jenmi under Section 60 of the Transfer of Property Act and if that right of redemption is capable of being exercised in a second suit except where it has been extinguished by the act of parties or by a decree of the Court then it is difficult to see how the decision in Mayan Kutti v. Kunhammad (1917) 34 M.L.J. 167 : I.L.R. 41 Mad. 641 can be relied on in a case relating to redemption of mortgages inclusive of Malabar kanoms. Whatever may be the case with reference to the right of ejectment by a landlord against his tenant, based on a mere lease document, by reason of the special provisions of the Madras Act I of 1900, there is nothing in the terms of Sections 5 and 6 of the said Act which is inconsistent with or takes away in any manner, the exercise of the right of redemption by a second suit where the general law allows the same No doubt even with respect to redemption suits relating to kanoms the provisions of the Malabar Compensation for Tenants' Improvements Act would have to be applied as the term ' tenant ' includes also mortgagee in possession of land and the terra 'ejectment' includes redemption or recovery of possession of land mortgaged. Provision is made, therefore for working out the rights of the kanomdars to payment of the value of the improvements and of the jenmis for recovery of arrears of rent and future rent due from the kanomdars in possession. Under Section 5 of the Act a tenant to whom compensation is due shall, notwithstanding the determination of the tenancy or the payment or tender of the mortgage money be entitled to remain in possession until ejectment in execution of a decree or order of Court. Clause 2 of Section 5 provides that,

a tenant so continuing in possession shall during such continuance hold as a tenant subject to the terms of his lease or of the mortgage, as the case may be.

Section 6 clause 3 provides for revaluation of the improvements with reference to the condition of improvements at the time of the execution of the decree and the adjustment of subsequent rents from the date of the decree to the date of ejectment in execution proceedings and allows the Court to vary the decree accordingly. Section 6 clause 4 which is an important clause in relation to the present question in controversy is as follows:

Every matter arising under Sub-section (3) shall be deemed to be a question relating to the execution of a decree within the meaning of Clause (c) of Section 244 (now Section 47) of the Code of Civil Procedure.

It is only questions arising under Sub-section (3) of Section 6 that cannot be the subject-matter of a separate suit later on by reason of Section 6 Sub-section 4 of the Act and Section 47, Civil Procedure Code.

14. Suits for rent for period subsequent to the date of the decree would no doubt be barred as it is clear from the sub-sections of Section 6 that rent accruing due after the passing of the decree should be set-off against the value of the improvements payable to the tenant at the time of ejectment in execution proceedings under the decree. It was so held in S.A. No. 1301 of 1943 by Horwill, J., but as pointed out in that decision itself by the learned Judge i( was unnecessary there to deal with the further question whether any suit in ejectment would lie where in an earlier suit the decree was allowed to become barred. The decisions in Mooriath Variath v. Meledath Kunja Nangaymamma : (1919)37MLJ206 and Kunhipalu v. Jathavedan Nanibudiri, unreported decision in Appeals Nos. 374 and 375 of 194s on the file of this Court on which Mr. Venkatachala Sastri relies did not deal with the point now under discussion and therefore are not useful. They merely hold that the tenant who continues to be in possession notwithstanding the decree in ejectment is not liable for mesne profits till he is ejected in execution as he cannot be held to be in wrongful possession of the property. Under the very terms of Section 5 of the Act he is entitled to be in possession till the compenstion is paid to him and till he is ejected in execution thereafter. Reliance was also placed on the decision of the Bench in Gopalan v. Sankaran Nair : AIR1945Mad197 . There the action was based on a lease pure and simple and it was not a case of a kanom. There was an earlier suit in ejectment and for arrears of rent on the basis of the lease document in which a decree was passed on 19th December, 1932. That was confirmed on appeal on 28th October, 1935. That decree, however, was not executed. On 10th September, 1939 the tenants made a deposit of the arrears of rent for faslis 1346 and 1347 and the previous decree was amended according to the terms of the Madras Act IV of 1938. The landlord subsequently filed a suit for recovery of rent for the years from 1939 to 1942. Dealing with the contention based on the provisions of Section 6 of the Madras Act I of 1900 the lower Courts held that the earlier decree was barred by limitation, that the lease sued on did not subsist by reason of that decree and that the suit was barred by the application of Section 47 of the Code of Civil Procedure and that under Section 6 (4) of the Malabar Compensation for Tenants' Improvements Act the light of the landlord to rent for the years subsequent to the decree had to be determined as a matter arising in execution and cannot form the subject of a separate suit. On appeal to this Court their Lordships after analysing the provisions of Sections 5 and 6 of the Act observed:

When the landlord has obtained a decree for the eviction of the tenant subject to the payment of compensation for improvements a statutory tenancy is created for the period during which the decree may be pending execution. During the statutory tenancy, the relations between the parties are governed by the terms of the lease sued on. If the landlord does not immediately pay the value of the improvements as determined at the time of the decree, the tenant acquires a right to revaluation of the improvements and the payment of any excess and the landlord obtains the right to set off against these improvements any future rent. But any question relating to the increase in the value of improvements and the amount of future rent to be set off against these improvements is to be determined by the executing Court as a matter arising in execution. It follows, therefore, that the lower Courts were right in holding that the present suit for rent (for the years from 1939 to 1942) is barred under Section 47, Civil Procedure Code.

Their Lordships further state

We may add that in our opinion the decision in Raghunath Singh v. Hansraj Kunwar has no application having regard to the provisions of the special Act.

It may be noted that in the above decision their Lordships have dealt only with the right to recover rent for future years within the period of 12 years from the date of the decree during which execution was possible under Section 48, Civil Procedure Code. There was no question of a second decree for possession of the properties. Their Lordships' observations as regards the non-applicability of the decision in Raghunath Singh v. Hansraj Kunwar . is attributable to the circumstance that the case before them was not for redemption of a mortgage or even one in ejectment by landlord against tenant. We must, therefore, hold that that decision does not govern the present case.

15. An examination of the relevant provisions of Sections 5 and 6 of the Act shows clearly that there is nothing therein which can be said to operate to extinguish the right of redemption

which right is conferred upon the mortgagor by enactment and of which he can only be deprived by means and in manner enacted for that purpose and strictly complied with.

There is no indication in the terms of the Act of the extinction of the right of redemption. Even if a decree is specifically passed in such a suit, not only for the mortgage amount but also for compensation for improvements and arrears of rent, it does not affect the question. There is nothing in such a decree which provides that in default of payment the right of redemption is extinguished. We are, therefore, of opinion that this second suit for redemption of a kanom lies notwithstanding the existence of the previous decree which has been allowed to become barred by limitation. This suit is filed well within the time allowed for a redemption of mortgage and is not also otherwise unsustainable.

16. It is not necessary to deal in this case with the question whether a second suit in ejectment by the landlord against the tenant based on a lease document pure and simple (as distinguished from a kanom) to which the Madras Act I of 1900 is applicable is sustainable or not, where an earlier decree in ejectment on the same lease has been allowed to become barred. The decision in Mayan Kutti v. Kunhammad (1917) 34 M.L.J. 167 : I.L.R. 41 Mad. 641 may require reconsideration. Even under the terms of Section 5 of the Special Act there is a statutory tenancy created during the period of the continuance of possession by the judgment-debtor in the earlier decree, the tenancy being on the terms of the original lease or mortgage in his favour. In such circumstances subsequent possession of the original tenant cannot be regarded as adverse to the landlord. It may well be that there is a fresh cause of action in ejectment notwithstanding that the earlier decree for possession has been allowed to become barred. That was the view of the Division Bench in Chowakkaran Keloth Makki Keyi v. Koomulli Madhavi Amma 29 IND.CAS. 559. It is true that the provisions of Section 6, clause 4 were not referred to in that judgment but nonetheless their Lordships held that the second suit in ejectment would lie on the basis of a fresh cause of action. This decision is, however, dissented from in the latter decision Mayan Kutti v. Kunhammad (1917) 34 M.L.J. 167 : 1917 I.L.R. 41 Mad. already referred to. No doubt there appears to be an apparent contradiction between the terms of Section 5, clauses 1 and 2 of the Madras Act I of 1900. According to clause 1(1),

Every tenant to whom compensation is due shall, notwithstanding the determination of the tenancy or payment or tender of the mortgage money if any be entitled to remain in possession until ejectment in execution of a decree or order of Court.

Clause 2 says that,

during such continuance the tenant shall hold as a tenant subject to the terms of his lease or of the mortgage.

Clause 2 cannot be explained away by stating that it is merely a provision regulating the terms and conditions subject to which the judgment-debtor continues to be in possession for the only purpose of the subsequent adjustment or rights between the decree-holder and the judgment-debtor at the time of execution in respect of revaluation of the improvements and future rents. If that alone was what was intended, the language should have been different and more specific and limited. As it is, the judgment-debtor is to hold the property as a tenant. A statutory tenancy, therefore with all the usual incidents of ' landlord and tenant ' must be deemed to have come into existence between the parties by reason of the operation of the said clause. If that is the correct position it may very well be held that notwithstanding the merger of the original cause of action in the earlier decree on the basis of the lease there arises a fresh cause of action for ejectment against statutory tenant on the determination of the statutory tenancy. It is however, unnecessary to deal with this question finally as the present case is not with reference to a lease pure and simple. It arises in relation to a kanom marupat which must be treated as also a mortgage creating the relationship of a mortgagor and a mortgagee between the parties with the appropriate rights of redemption, foreclosure and sale.

17. We are, therefore, of opinion that the learned District Judge was wrong in holding that the present suit is barred under Section 6 (4) of the Madras Act (I of 1900). We set aside the decree of the learned District Judge and restore the decree f the trial Court. The appellant will get the costs of this Court and of the lower appellate Court from the 1st respondent.


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