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Easoop Alias Mani Rowthen and ors. Vs. Bookutty Umma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported inAIR1956Mad259; (1956)1MLJ427
AppellantEasoop Alias Mani Rowthen and ors.
RespondentBookutty Umma and ors.
Cases ReferredPeria Karuppan Chettiar v. Vaithyanathan Chettiar
Excerpt:
- - hence this appeal by the defeated respondents 2 to 14 in the lower court. , was stated to have taken a different view of the scope of section 9-a (a)(i). but like rajagopala ayyangar, j......on the date of mortgage. it was further agreed before the learned subordinate judge that the gross rent of items 1 to 45 and 54 to 65 was 932 1/2 paras of paddy a year. on 28th february, 1920, the mortgagee was evicted from possession of items 1 to 31 in execution of a decree in o.s. no. 122 of 1917 on the file of the alatur district munsif's court. the mortgagee was paid a sum of rs. 310 as the price for redemption of those properties. the parties are also agreed that the gross rent of these items 1 to 31 is 512 1/2 paras of paddy per year. later on the mortgagee lost possession of items 32, 33, 37 and 54 to 65 in execution of the decree in o.s. no. 83 of 1917 on 7th january, 1925. herein also the parties are agreed that the gross rent of items 32, 33, 37 and 54 to 65 is 135 paras of.....
Judgment:

Ramaswami, J.

1. This is an appeal preferred against the order made by the learned Subordinate Judge of South Malabar at Palghat in O.P. No. 36 of 1949.

2. The facts are: A petition was filed by the purchaser of the equity of redemption in some of the properties mortgaged to one Vella alias Moidinkutty Rowthen by one Balakrishna Mannadiar on 27th March, 1913, for scaling down under the provisions of the Madras Agriculturists' Relief Act. Balakrishna Mannadiar aforesaid executed the aforesaid document in respect of 65 items of properties described in the schedule to that document. The principal sum secured under the document was Rs. 6,014-4-7. The mortgagee was directed to discharge a prior mortgage in and over items 46 to 53 after payment of a sum of Rs. 1,714-4-7 to the prior mortgagee. He was to reduce the properties to his possession, but the mortgagee did not do so as he did not discharge the prior mortgage. Therefore the parties agreed before the learned Subordinate Judge that the mortgage may be deemed to have related only to items 1 to 45 and 54 to 65 and that the principal sum secured may also be treated as Rs. 4.300. Admittedly, the mortgagee was put in possession of items 1 to 45 and 54 to 65 by the mortgagor on the date of mortgage. It was further agreed before the learned Subordinate Judge that the gross rent of items 1 to 45 and 54 to 65 was 932 1/2 paras of paddy a year. On 28th February, 1920, the mortgagee was evicted from possession of items 1 to 31 in execution of a decree in O.S. No. 122 of 1917 on the file of the Alatur District Munsif's Court. The mortgagee was paid a sum of Rs. 310 as the price for redemption of those properties. The parties are also agreed that the gross rent of these items 1 to 31 is 512 1/2 paras of paddy per year. Later on the mortgagee lost possession of items 32, 33, 37 and 54 to 65 in execution of the decree in O.S. No. 83 of 1917 on 7th January, 1925. Herein also the parties are agreed that the gross rent of items 32, 33, 37 and 54 to 65 is 135 paras of paddy per year. Items 7, 10 and 11 were put in possession of the 13th appellant herein under an assignment of a 1/5th of the mortgage right for which he paid a sum of Rs. 400. The 1/5th mortgage right has to be valued at Rs. 860, taking the principal sum originally secured at Rs. 4,300. The balance principal amount due in respect of the 4/5th of the mortgage would be only Rs. 3,440. At present items 34 to 36 and 38 to 45 are alone in the possession of the appellants 1 to 12 herein.

3. The learned Subordinate Judge purporting to scale down the debt under Section 9-A of the Madras Act IV of 1938 came to the conclusion that the amount due on the date of the petition in respect of the 4/5ths mortgage right would be Rs. 213-2-3 and the amount due in respect of the 1/5th mortgage right would be Rs. 400. The learned Subordinate Judge gave a declaration accordingly. Hence this appeal by the defeated respondents 2 to 14 in the lower Court.

4. There is no dispute before me regarding the figures and the only dispute is that such scaling down cannot be done except in a suit for redemption where all the equities could be worked out.

5. An examination of the decisions under Section 9-A of the Madras Agriculturists Relief Act does not lend support to this contention. In Srinivasaraghava Aiyangar v. Narasimha Mudaliar : AIR1952Mad292 , the facts were: The petitioner had executed a usufructuary mortgage in favour of the respondent who had executed a lease back in favour of the mortgagor-petitioner. In a suit by the usufructuary mortgagee for recovery of rent from the mortgagor on the basis of the said lease, the contention was raised that under Section 9-A (6)(a) of Madras Act IV of 1938 the respondent was only liable to pay interest and not the rent agreed to be paid. It was held that the mortgagee would be entitled to a decree for the entire rent and that if the mortgagor does not apply for redemption there is nothing in the provisions of the section or in the Act which precludes a mortgagee from filing a suit for recovery of the rents legally due under the lease. There was an observation in this decision by Subba Rao, J., that the provisions of Section 9-A were applicable only to suits for redemption and could not be invoked for scaling down the rent outside such suits. In C.R.P. No. 1030 of 1951 Raghava Rao, J., was stated to have taken a different view of the scope of Section 9-A (a)(i). But like Rajagopala Ayyangar, J., as observed by him in judgment in C.R.P. Nos. 1109 and 1110 of 1953, dated 6th January 1953 (Sowmyanarayanan Ambalam v. Palaniappan alias Srinivasan) I find, after a careful perusal of the judgment of Raghava Rao, J., that it is not possible to gather the exact ratio in the absence of any discussion of the terms of the relevant statutory provisions or of any reference to the judgment of Subba Rao, J. In his judgment in C.R.P. Nos. 1109 and 1110 of 1953 Rajagopala Ayyangar, J., agreed with Subba Rao, J., that the scaling down effected by Section 9-A (9) is available to a mortgagor lessee only in cases where he files a suit for redemption, and that this apart, the provision is inapplicable to cases where a mortgagee files a suit for the recovery of the rent stipulated under the lease-back, that the provisions of sub-sections (2) to (8) are all concerned with suits for redemption and with the ascertainment of the amounts payable to the mortgagee in such suits, that it was clear that Sub-section (9) is really an analogue to sub-sections (3) to (6) in eases where there is a lease back and that just as the earlier sub-sections apply only for the determination of the amounts payable to a mortgagee to enable redemption to be effected Sub-section (9) also is similarly designed and operates to achieve a similar purpose. The learned Judge concluded that the machinery therefore of the scaling down provision can only apply for the determination of the sum payable for redemption and the words of the provision referring to the rent payable to the mortgagee as interest on the principal amount of the mortgage debt cannot be divorced from this scheme and invoked as an independent provision for scaling down rents. In S.A. No. 2252 of 1952 (Thiruppathi and Anr. v. Rajagopala Naidu and Ors.) the facts were: The plaintiff sued for recovery of a sum of money due on a mortgage for Rs. 3,000, dated 29th November, 1942. The mortgage was redeemable only after a lapse of five years. The mortgagor put the mortgagee in possession of the mortgaged property. There was an oral lease-back to the mortgagor which ended on 29th November, 1946, and the plaintiff-mortgagee was put back in possession of the property. The question which arose was whether the plaintiff was entitled to get the entire principal sum of Rs. 3,000 or whether the provisions of Section 9-A of Madras Act IV of 1938 were applicable. The lower Court applied the provisions of Sub-section (3) and gave a preliminary decree for sale for a sum of Rs. 2,283-5-4. The question before the High Court was whether that decision was correct. Govinda Menon, J., held that Section 9-A as it stood did not contemplate by its intendment a suit for sale, that it came into play only where in the case of a usufructuary mortgage, the mortgagor seeks to redeem, and it has no effect as in that instant case where there was a combination of a simple and a usufructuary mortgage and the mortgagee took advantage of the covenant by the mortgagor to pay the sum, that therefore a suit can be based only on foot that the mortgage in question in this respect can be construed as a simple mortgage, and that therefore Section 9-A could not be applied to a case where, in a composite mortgage the mortgagee filed a suit for realisation of the principal sum by sale of the mortgaged property. The learned Judge quoted with approval the decision of Subba Rao, J., in Srinivasaraghava Aiyangar v. Narasimha Mudaliar : AIR1952Mad292 , and relied upon the observation of Subba Rao, J., that the scheme of the section leaves no doubt that it was intended only to apply when the mortgagor seeks to redeem the mortgage. Then the learned Judge proceeded to consider whether it was open to the mortgagor by a written statement without filing a fresh suit, to invoke the provisions of Section 9-A for the amount being scaled down. He held that unless the mortgagor tendered the money or deposited the same into Court, he was not exercising the right to redeem. In the particular circumstances of that case Govinda Menon, J., moulded the relief as follows, viz., that if the mortgagor deposited the amount as scaled down within two months it would not be open to the mortgagee preliminary decree-holder to apply for a final decree for sale of the mortgaged property for the entire amount and that in default he would be entitled to apply for a final decree for the entire amount of Rs. 3,000. In S.A. No. 1246 of 1950 Visalakshi Achi v. Mayalogu and Ors. a reference was made by Krishnaswami Nayudu, J., to a Bench by reason of what he considered to be conflicting decisions in Srinivasaraghava Aiyangar v. Narasimha Mudaliar : AIR1952Mad292 , Sankara Ayyar v. Tagappan Servai (1940) M.L.J. 874, and Venkatanarayana Rao v. C. Savansukha (1954) 2 M.L.J. 47. The Bench held that the relief provided for under Section 9-A of scaling down was confined only to suits for redemption wherein the entire relationship between the mortgagor and mortgagee was put an end to forever and affirmed the correctness of the decision of Subba Rao, J., in Srinivasaraghava Aiyangar v. Narasimha Muaaliar : AIR1952Mad292 .

6. It will be seen that all these decisions are irrelevant for the purpose of this case because what the petitioner in the lower Court sought was only a declaration of the amount due under the usufructuary mortgage in question and not for recovery of possession or for arrears of rent or for the composite relief of redemption and sale. In this connection it may be noted that though the learned Subordinate Judge's order purports to show that the application was made under Section 9-A, a reference to the preamble of the decree shows that the petition had been filed under Sections 9, 19-A and 23 of the Act IV of 1938.

7. On a plain reading of the provisions of Section 19-A a mortgage debt is not as such excluded from the operation of Section 19-A. There is nothing to show that Section 9-A is an overriding provision and otherwise self-contained having no relation whatever with the procedure laid in the Act for enforcing the rights of the agriculturists. Hence a recent Bench decision of this Court in Peria Karuppan Chettiar v. Vaithyanathan Chettiar (1955) 2 M.L.J. 30, held that it is open to a mortgagor to maintain an application under Section 19-A of the Madras Agriculturists' Relief Act for having a declaration that the mortgage debt has become discharged under Section 9-A of the Act and it cannot be said that a mortgage debt is excluded from the operation of Section 19-A. The language of Section 9-A does not provide that the right could be agitated only in a suit for redemption and not otherwise, so long as a mortgage debt is not outside the scope of Section 19-A. Nor is there anything in Section 19-A which could be said to bar an application by a mortgagor who is entitled to rights of scaling down under Section 9-A and to obtain a declaration of discharge of the mortgage. No doubt any further remedy which the mortgagor might claim to have, as and by way of recovery of possession or otherwise, could be had not in a proceeding under Section 19-A, but the other modes open to him under law, ordinarily by way of suit.

8. In the result, this appeal is without any substance and has got to be dismissed and is hereby dismissed. In the circumstances I make no order as to costs.


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