EAPEN VARKEY Vs. PARVATHI PILLAI AMMA
LAWS(KER)-1963-2-11
HIGH COURT OF KERALA
Decided on February 14,1963

EAPEN VARKEY Appellant
VERSUS
PARVATHI PILLAI AMMA Respondents


Referred Judgements :-

KORAH PUNNEN VS. PARAMESWARA KURUP VASUDEVA KURUP [REFERRED TO]
MOHAMED VS. GHEEVARGHESE [REFERRED TO]



Cited Judgements :-

N KRISHNA PILLAI VS. SBT [LAWS(KER)-1966-11-22] [REFERRED TO]


JUDGEMENT

- (1.)The main question for consideration in this case is whether a provision in a mortgage document executed in 1954 that the mortgagor will not claim any benefit under any Debt Relief Act passed thereafter is enforceable or not. After the coming into force of the Kerala Agriculturists Debt Relief Act of 1958 the mortgagor claimed relief under the appropriate provisions of the Act, when the mortgagee sought to rely on the above mentioned provision in the mortgage document and the lower court has rejected the plea.
(2.)Mr. K. C. John, on behalf of the mortgagee, draws my attention to three decisions: (1) Mathevan Pillai Kolappa Pillai v. Uthamarayan Savarimuthu Bhasian 1943 TLR 409, (2) Narayana Reddiar v. M. N. Pattar 1950 KLT 295 and Mohamed v. Gheevarghese 1961 KLT 542 . In the first of these cases a Division Bench of the Travancore High Court has held that the Travancore Debt Relief Act was not based on any public policy or morality and therefore the debtor might, if he so chose, barter away his rights and if he did that, he was alone to be blamed and no other. The Division Bench observed:
"The right is intended not so such for his protection as for his benefit ...."

(3.)This decision has been followed by a Division Bench of the Travancore Cochin High Court in the second case. In the third case referred to above Velu Pillai, J., has followed the decision in the first case and has observed:
"On this point, I feel no difficulty in maintaining the view of the learned District Judge. It was not disputed before me, that a party may contract out of the provisions of that Act, and may give up or renounce benefits which the Act is intended to confer on him."

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