Leelamma w/o late Gopinathakurup and others v. T. G. Raveendran Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 3RD DAY OF OCTOBER 2013/11TH ASWINA, 1935** ## **SA.No. 178 of 2002 ( )** ## **-------------------------------AGAINST THE JUDGMENT IN AS 78/2000 of SUB COURT, THIRUVALLA DATED 07/09/2001** **AGAINST THE JUDGMENT IN OS 141/1997 of MUNSIFF COURT, THIRUVALLA DATED 28/02/2000** ## **APPELLANT(S)/APPELLANTS/DEFENDANTS:** **--------------------------------------------------------------------** **1. LEELAMMA WIFE OF LATE GOPINATHA KURUP, MUNDALIL VEEDU, THALAYAR MURI, KUTTOOR VILLAGE THIRUVALLA TALUK.** **2. RAJALEKSHMI ALIAS BINDU,DAUGHTER OF LEELAMMA DO.DO.** ## **3. SINDHU, DAUGHTER OF LEELAMMA, DO.DO.** **4. RAJESH,SON OF LEELAMMA,DO.DO.** ## **BY ADV. SRI.SATHISH NINAN** ## **RESPONDENT(S)/RESPONDENT/PLAINTIFF:** **----------------------------------------------------------------------** **T.G.RAVEENDRAN NAIR,SON OF GOPALAN NAIR, THUNDATHIL HOUSE, THALAYAR MURI, KUTTOOR VILLAGE THIRUVALLA TALUK.** **BY ADV. SRI.CHERIAN GEE VARGHESE BY ADV. SRI.P.HARIDAS** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** das **CR** **N.K.BALAKRISHNAN, J.** ========================== **S.A. No. 178 of 2002** =========================== ## **Dated this the 3[rd] day of October, 2013** ## **JUDGMENT** Defendants in a suit for partition are the appellants. The suit property measures 47 ½ cents. It originally belonged to one Narayanakurup and his sister Gowrikuttyamma obtained as per Ext.A1 Otti assignment deed of 1966. Gowrikuttyamma is the mother of the first defendant's husband. Undivided half right of Narayanakurup was assigned to his nephew-the plaintiff, as per Ext.A2 of 1996. On the death of Gowrikuttyamma, her undivided half right devolved upon the defendants, who are the wife and children of Gopinathakurup, the deceased son of Gowrikuttyamma. Thus the plaintiff contended that he has got half right over the entire 47½ cents covered by Ext.A1. S.A.No.178/2002 2 2. The defendants contended that out of 47½ cents mentioned above, one half measuring 23¾ cents being the northern portion was obtained by Gowrikuttyamma and her deceased son as per Ext.B2 document of 1959. It was stated that on the southern side of the suit property, plaintiff has got 9 cents of land, which is not part of the suit property. It was further stated that, to the north of the 9 cents referred to above, first defendant's husband obtained 3 cents as per a release deed of 1985. It was also sated that Gowrikuttyamma had 9 cents of kudikidappu land on the north-western side and it is outside the plaint schedule property. 3. It was found by the courts below that parties are bound by Ext.A1 which is in respect of the entire suit property, whereas Ext.B2 is only in respect of the northern half measuring 23¾ cent. The contention that Narayanakurup had only half right over the southern half measuring 23¾ was found against. It was also found by the S.A.No.178/2002 3 courts below that since the entire plaint schedule property was outstanding on mortgage right as per the mortgage deed No.1600/1113 ME, Gowrikuttyamma and her son had obtained, as per Ext.B2, only the equity of redemption in respect of the northern 23¾ cents of land. 4. The following substantial questions of law have been framed in this case: - (i) When, under Ext.B2, the equity of redemption became vested in the defendants who are the holders of the equity of redemption, has there not been an extinguishment of the mortgage ? - (ii)Is there not a merger of the mortgage rights as regards the northern half of the plaint schedule property consequent to Ext.B2 and Ext.A1 documents ? 5. There is no dispute regarding the fact that as per Ext.B2 the defendants had obtained the mortgagor's right in respect of the northern half measuring 23¾ cents. The defendants, who had obtained equity of redemption in respect of the northern half subsequently obtained assignment along with the plaintiff's predecessor, the S.A.No.178/2002 4 mortgagee's right, so far as it relates to the northern half and hence the appellants contend that there is a pro-tanto extinguishment of the mortgage right and so in respect of the northern portion of the land, the appellants' predecessor became the absolute owner of the property and as such, the northern half is not available for partition. Since the appellants' predecessor is a co-mortgagee along with the plaintiff's/ respondent's predecessor, over the southern half, the appellants have undivided half right over the southern half which alone is available for partition, to be divided into two equal shares, it is further argued on behalf of the appellants. The learned counsel for the respondents would submit that it is not a case where the mortgagee purchased the mortgagor's right and so there cannot be coalescing of the mortgagor's right with the mortgagee's right. 6. It was held by the Apex court in **Chhaganlal Keshavlal Mehta v. Patel Narandas Haribhai (AIR** S.A.No.178/2002 5 ## **1982 SC 121)** : “A perusal of this provision indicates that a co-mortgagor cannot be permitted to redeem his own share of the mortgaged property only on payment of proportionate part of the amount remaining due. In other words the integrity of the mortgage cannot be broken. O.34, R.1 of the Civil P.C. deals with the parties to suits for foreclosure, sale and redemption. It provides: “Subject to the provisions of this Code, all persons having an interest either in the mortgagesecurity or in the right of redemption shall be joined as parties to any suit relating to the mortgage.” 7. What was obtained assignment by Gourikuttyamma and her son Gopinatha Kurup in respect of the northern 23¾ cents as per Ext. B2 is only the equity of redemption in respect of that portion of the land. Though it can be said that there would be pro tanto reduction of the mortgage money in view of the fact that in respect of that portion of the land there was a merger or fusion of the mortgagor's right with the mortgagee's right, the contention that the undivided half right of the comortgagee in respect of the northern 23¾ cents stood extinguished and that the mortgagee and his assignee can S.A.No.178/2002 6 have no right over that portion of the land cannot be accepted at all. The co-mortgagee was not paid anything and the rights and liabilities between the mortgagor and the co-mortgagee in respect of that portion of the land was not worked out. There was no coalescing of the mortgagormortgagee relationship. So much so, the contention that there was pro-tanto extinguishment of the mortgagee's right in respect of the northern 23¾ cents and as such the respondents are not entitled to claim partition of that much extent of land, appears to be unsound and unreasonable. 8. So far as the case on hand is concerned, here Ext. B2 is first in point of time, vis-a-vis, Ext.A1 the assignment deed and so it is a case where a co-mortgagor obtained assignment of the mortgagee's right along with other mortgagees in respect of the whole of the estate and not a case where the mortgagee subsequently purchased the mortgagor's right in respect of a portion of the mortgaged property so as to contend that there was pro- S.A.No.178/2002 7 tanto extinguishment of the mortgage right. As such, the contention raised by the appellants that they have become absolute owners of the northern 23¾ cents out of the plaint schedule property and hence that much extent of land has to be totally excluded from partition has to be brushed aside. The plea that the appellants are entitled to have the southern 23¾ cents partitioned and to get allotment of half right over the same is also unsound and untenable, the learned counsel for the respondents submits. 9. **Narayanaswami v. Perumal - AIR 1953 Madras 720** was a case where the integrity of a mortgage was broken up by reason of the mortgagee acquiring a share in the property. Hence, the proper remedy available to one of the remaining co-mortgagors was not to sue for redemption of the entire property, but to sue only for partition and redemption of his share. Here, it is not a case where the mortgagee acquired a share in the mortgaged properties so as to contend that there was redemption in S.A.No.178/2002 8 respect of that portion of the land. 10. The decision of the Supreme Court in **V. Ramaswami Aiyengar and Others v. T.N.V. Kailasa** - **Thevar AIR 1951 SC 189=1951 KHC 235** , has no application to the facts of this case. There the defendants were entitled to get a decreetal debt scaled down in accordance with the provisions of the Madras Agriculturists' Relief Act, 1938 which came into force during the pendency of the suit in that case. The facts dealt with in that case are totally different. In that case it was held that the judgment debtors are the mortgagors themselves and according to the provisions of that Act there could not be any objection to a decree for reduced amount being passed against an agriculturist debtor, while the same relief is not given to his co-debtors who do not fulfill that description. 11. The decision in **Venkappa Bhatta v. Gangadhara Bhatta - 1958 KLT 946=1958 KHC 197** has also been relied upon by the learned counsel for the S.A.No.178/2002 9 appellants. The facts of that case are also entirely different. In that case there was usufructury mortgage and a lease back as part of the same transaction. The relationship between the parties was that of the mortgagor and mortgagee even in respect of the rights and liabilities arising under the lease. Therefore, it was said that the morgagor cannot redeem without payment of arrears of rent. Though the suit was not for a decree for redemption but for a declaration that the mortgage already stood redeemed, it was thought proper to give the plaintiff the lesser relief of declaration that the mortgage already stood redeemed, instead of driving the parties to a separate suit. 12. **Parukutty Amma v. C.B. Amma - AIR 1954 Madras 818** was a case in which, by a decree to which the mortgagee was a consenting party, the property mortgaged was partitioned between the two co-owners and the mortgage debt was apportioned between the two sets of properties. It was held that by reason of that transaction S.A.No.178/2002 10 what was originally one mortgage, was, in effect and in substance, constituted into two distinct and separate mortgages so that the two owners of the separate portions of the divided property were no longer co-mortgagors and that therefore, neither of them was any longer entitled to redeem the entire mortgage. The gist of the decision was that the rights of the parties are to be worked out as if by the decree, which not merely broke the integrity of the mortgage but also apportioned the liability thereunder, the original mortgage was split up into two different and separate mortgages. Facts of that case are also not identical to the facts of this case. 13. The decision of the Privy Council in **Shah Ram Chand v. Pandit Parbhu Dayal and Others - AIR (29) 1942 PC 50** has also been relied upon by the learned counsel for the respondent in support of his submission that the integrity of the mortgagee is not broken except where the mortgage has purchased or otherwise acquired as S.A.No.178/2002 11 proprietor a certain portion of the property mortgaged. In that case it was held that under Sec.60 of the Transfer of Property Act, the integrity of a mortgagee is not broken except where the mortgagee has purchased or otherwise acquired as proprietor a certain portion of the property mortgaged and hence where the mortgagee has allowed the owner of one part of the mortgaged property to redeem his part, any separate owner of a portion of what remains cannot redeem his part on payment of its proportion of the debt. It was found in that case, no part of the mortgage property was acquired by the mortgagees or their successors. Here also, it is not a case where a mortgagee has acquired or purchased certain portion of the property mortgaged or subsequently purchased portion of the equity of redemption. 14. It is pointed out by the learned counsel for the respondent that in the case on hand it is not only Gourikuttyamma who had undivided half right who S.A.No.178/2002 12 purchased the equity of redemption but obtained by her son Gopinatha Kurup also. It is also pointed out that under Sec.60 of the T.P.Act a part purchaser of a mortgaged property from the mortgagor can redeem the whole of the mortgaged property if he is ready to pay-up the whole of the mortgage money but the part purchaser cannot redeem the mortgaged partly according to his share even if he is ready to pay up the whole of the mortgage money because the mortgaged property should be construed as a single unit and is not divisible for the purpose of redemption. 15. The learned counsel has relied upon the decision in **Girja Singh and another v. Gaynwanti Devi and Others** - **AIR 2001 Patna 20** . In that case it was held that the mortgage property should be construed as a unit and is not divisible for the purpose of redemption and that it can be redeemed as a whole and not by part. There the redemption suit related to a part of the mortgaged property. It was held that a person having acquired a part of the S.A.No.178/2002 13 mortgagor's right should redeem whole of the mortgage and he is not entitled to get redemption of a part of the mortgaged property in respect of his/her share alone. 16. In the decision reported in **AIR 2001 Patna 20 (supra)** it was held that the plaintiffs by securing some right towards part of a mortgaged property cannot get the redemption of the mortgaged property in respect of his or her share. 17. The learned counsel for the appellant has also relied upon the decision in **Madhavan Nair and Others v. Ramankutty Menon and Others** - **AIR 1994 Kerala 75 =1993 KHC 256** where it was found that the entire mortgage right became vested in the first plaintiff therein who was also entitled to 9/30 shares in the equity of redemption. Thus, that was a case where the mortgagee acquired a portion of the equity of redemption. The other question to be considered in that case was whether in such circumstances the appellant is a deemed tenant as per S.A.No.178/2002 14 Sec.5 of the Kerala Land Reforms Act (“KLR Act for short”). In that case, the lower courts took the view that the first plaintiff is entitled to fixity of tenure being a deemed tenant under Sec. 5 of the KLR Act. In order to attract Sec. 5 of the KLR Act a person must be in possession of the property as a mortgagee as on 1-4-1964. It was argued that if the person occupies the position of both creditor and debtor, there will be a fusion of both and the debt will become extinguished. Applying that principle it was argued that when a mortgagee acquires a portion of the equity of redemption, there is a complete extinguishment of the mortgage. But it was held by the Division Bench in the case cited supra that there can only be a pro tanto extinguishment of the mortgage right to the extent of the mortgagee acquiring the mortgagor's interest and so far as the other sharer of the equity of redemption is concerned, the mortgage will subsist. Thus it was found that regarding the balance 21/30 shares the mortgage will subsist. It was S.A.No.178/2002 15 also observed that the last paragraph of Sec. 60 of the T.P.Act deals with the contingency in which a partial redemption of a mortgage can be effected provided that a person interested in a share only of the mortgaged property will be entitled to redeem his share alone in cases where the mortgagee or if there are more mortgagees than one, all such mortgagees has or have acquired, in whole or in part, the share of a mortgagor. It was further observed that when the mortgagee acquires a right in part of the equity of redemption of the mortgaged property the other sharers of the equity of redemption will be entitled to redeem their part alone. It was also found that the provision afore quoted also indicates that by the mortgagee acquiring a portion of the equity of redemption there is no exitinguishment of the mortgage right in full but there will only be a pro tanto extinguishment of the mortgage to the extent of the mortgagee pro tanto acquiring the share of the mortgagor and if that be so the mortgage subsists so far as S.A.No.178/2002 16 the other sharers are concerned and it cannot be said and the mortgage has come to an end. 18. The learned counsel for the respondent would submit that in the case on hand the position is different; that here on the strength of Ext. B2 the appellant obtained assignment of part of the equity of redemption and later he along with the respondent obtained assignment of the entire right of the mortgagee and, therefore, it is not a case where the mortgagee acquiring the share of the mortgagor subsequently so as to contend that there was pro tanto extinguishment of the mortgage. So far as the mortgagees are concerned they had acquired a valuable right. It was not partitioned. The appellant has only acquired on assignment, the equity of redemption with respect to a portion of the mortgaged property. That will not affect the mortgagee's right to be in possession of the mortgaged property. In such circumstances the appellant who had obtained assignment of a portion of the mortgagor's right S.A.No.178/2002 17 cannot legitimately contend that there was pro-tanto extinguishment of the mortgage right and thereby he acquired absolute right. 19. The decision of the apex court in **State of Kerala v. Koliyat Estate - 1999 (3) KLT 553 = 1999 KHC 640** has been referred. In that case of the plaintiff “Koliyat Estate”, a firm which possessed extensive acres of plantation had obtained loan from the Central Bank of India for which a tripartite agreement was executed between the bank and the Koliyat Estate and the Government of Kerala, pursuant whereto, the plaintiff firm executed Ext.B1 mortgage in favour of the Bank for which the State Government stood as the guarantor. Subsequently, by virtue of the provisions of the KLR Act more than 1200 acres of land covered by the mortgage became vested in the Government as per Sec.86 (2) of the Kerala Land Reforms Act. Similarly, by virtue of the provisions of the Kerala Private Forest (Vesting and Assignment) Act, 1970 certain S.A.No.178/2002 18 land became a private forest. Therefore, the plaintiff estate contended that it is entitled for reduction of mortgage liability covered by Ext. B1 in proportion to the value of the properties taken by the Government under the provisions of the Kerala Land Reforms Act and under the Provisions of the Kerala Private Forest (Vesting and Assignment) Act. The courts below accepted the case of the plaintiff and held that the plaintiff was entitled to get pro tanto reduction of the mortgage debt. That was challenged before the Supreme Court contending that the plaintiff is not entitled to get pro tanto reduction of the mortgage debt since the mortgaged land vested in the Government in accordance with the provisions of a statute. The point that was raised before the Hon'ble Supreme Court was whether the mortgagor can claim pro tanto reduction of mortgage liability under Sec.60 of the Transfer of Property Act which deals with the right of a mortgagor to redeem on payment or tender of the mortgaged money. The mode of effecting S.A.No.178/2002 19 such redemption is prescribed in the section. The last paragraph of Sec. 60 of the T.P.Act reads thus:- _“Nothing in this Section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgages, has or have acquired, in whole or in part, the share of a mortgagor”._ 20. It was held by the Apex Court that the first part contains a negation to the holder of a part of equity of redemption to redeem that part alone on payment of the proportionate debt whereas the second limb of the paragraph provides the solitary exception to the aforesaid negativing edict. It was held that the words in that second limb “except only where” are a pointer that the said exception would be strictly confined to the one situation envisaged therein. It was held : _“In order to invoke the solitary exception to the disentitling fiat of the last paragraph of S. 60 of the T.P. Act there must be a conjunction of two postulates. One is that share of the mortgagor in the property should have been “acquired”. Second is that the person who so acquired should have been the mortgagee”._ 20 ## S.A.No.178/2002 21. The Decision of the Calcutta High Court in **Jasodha Kumar Dey v. Kali Kumar Dey and Others - AIR 1930 Calcutta 619,** Full Bench Decision of the Bombay High court in **Lakshmidas Ramdas v. Jhumandas Shankar Lal - ILR 22 Bombay 304** and the decision of the Madras High Court in **Eswara Krishna Iyer and Another v. Mariya Susai Reddiar and Others - AIR 1940 Mad. 498** were considered by the Hon'ble Apex Court in **Koliyat Estate - v. State of Kerala** . In the decision in **Lakshmidas Ramdas v. Jhumandas Shankar** **Lal - ILR 22 Bombay 304** it was held that if the mortgagee purchased the equity of redemption he must allow proportionate reduction of the value of the property purchased by him; but where the circumstances under which the purchase was made show that it was purchased free from all encumbrances, the plaintiff can enforce his entire security against the remaining property. Finally it was held that the principle underlying the last clause of S.A.No.178/2002 21 Sec.60 the T.P.Act applies only in cases where the mortgagee in the character of a mortgagee acquires the equity of redemption outstanding with the mortgagor. The Hon'ble Supreme Court concurred with the views of the High Courts of Calcutta, Bombay and Madras on the interpretation of the last paragraph of Sec.60 of the T.P.Act. The learned counsel for the respondent would submit that the pro tanto extinguishment of the mortgage right would arise only if it satisfies the last paragraph of Sec.60 of the T.P.Act which only says that if the mortgagee in the character of a mortgagee acquires equity of redemption. 22. What was obtained by Gourikuttyamma and her son Gopinatha Kurup was only the equity of redemption when the property already stood mortgaged as per mortgage deed No. 1600/1113 M.E. and when the property was in the possession of the mortgagee. It is not in dispute that the properties were then in the possession of the mortgagees. Therefore, the contention that there was S.A.No.178/2002 22 pro tanto extinguishment of the entire mortgage in respect of the northern 23 ¾ cents of land and accordingly the appellants became absolute owners of the northern half of the property, cannot be sustained. Similarly, the contention that the appellant is entitled to half right over the undivided mortgagee's right in respect of the southern half also cannot be sustained. But in equity the northern half shall as far as possible be allotted to the appellants and the southern half shall as far as possible be allotted to the respondents, but after valuation and making provision for equalisation of share if necessary. This Regular Second Appeal is dismissed subject to what is stated above. _Dated this the 3[rd] day of October, 2013._ ## **Sd/-N.K.BALAKRISHNAN, JUDGE** ## **ani/das** ## **/true copy/** ## **P.S.to Judge**