ALAVIKUTTY Vs. SALMI
LAWS(KER)-1964-11-19
HIGH COURT OF KERALA
Decided on November 10,1964

ALAVIKUTTY Appellant
VERSUS
SALMI Respondents

JUDGEMENT

- (1.) The suit giving rise to these appeals was for redemption of three mortgages, Exx. A1, A2 and A3, of 24th February 1919, 24th February 1921 and 13th February 1922 respectively. There were three leases back, Exx. B1, B2 and B64, the first two of 24th February 1919 and the last one of 11th April 1921. The lower court found that Ext. A2 was wiped out under Madras Act IV of 1938; that the other two mortgages were subsisting, and that the plaintiffs had to pay the mortgage amounts thereunder. The lower court also found that the leases back and the mortgages were separate transactions. On that basis the plaintiffs claimed that since they deposited arrears of rent for six years, 1123 to 1128, all the prior arrears stood wiped out under the Malabar Tenancy Act. This plea was however not accepted by the lower court on the reasoning that though the mortgages and the leases back were separate transactions, the mortgagees were entitled to consolidate the mortgages and the arrears of rent, which were really arrears of interest on the mortgages. The plaintiffs further urged that they were entitled to the benefits of S.34 of Act IV of 1961 (now S.73 of Act I of 1964); and that they could deposit one year's rent and claim that all the subsequent arrears were also wiped out. This again was not accepted by the lower court. The plaintiffs' further contention was that the mortgage under Ext. A1 was itself wiped out under S.9A of Act IV of 1938, which plea was again rejected. A minor plea, which was raised and rejected by the lower court, was that a promissory note for Rs. 1000/- handed over as further security on the date of Ext. A2 should be given credit in settling the amounts payable by the plaintiffs to the mortgagees. A. S. No. 497 of 1961 is by the plaintiffs; and their contentions therein are: (1) that the arrears of rent prior to 1123 need not be deposited; (2) that under S.73 of Act I of 1964 they are entitled to deposit one year's rent and claim discharge of all the arrears subsequent to 1128; (3) that the promissory note amount of Rs. 1000/- should be given credit; and (4) that Ext. A1 should be held to have been wiped off under S.9A of Madras Act IV of 1938.
(2.) The other appeal, viz., A. S. No. 449 of 1961, is by as many as 27 of the several defendants in the suit. They claimed fixity of tenure over the portions of the mortgage properties in their respective possessions and value of improvements thereon in the alternative. The lower court issued a fresh commission after Kerala Act XXIX of 1958 came into force and also awarded compensation under that Act; but, it rejected the claim for fixity of tenure. In appeal the two contentions raised by the defendants are: (1) that they are entitled to value of improvements under Act XXIX of 1958 and the report of the fresh commission should be rejected, as the commissioner did not value the improvements afresh, but merely adopted the earlier report; and (2) that they are entitled to fixity of tenure under Kerala Act I of 1964. On the first point, what appears is that, regarding the kuzhikoors (fruit bearing trees) the tables of prices published by the Government came into force subsequent to the disposal of the suit by the lower court; and that this Court should therefore revalue the kuzhikoors adopting those rates. But, it also emerges that the kuzhikoors form only a small portion of the improvements and that the major portion of the improvements are only buildings, in the valuation of which the tables have no relevancy. Again, the mode of valuation of buildings under the earlier Madras Act and Kerala Act XXIX of 1958 was the same; and therefore, the objection to the valuation by the fresh commission has no force.
(3.) We shall first take up A. S. No. 497 of 1961, the plaintiffs' appeal, and dispose of the less important of the questions. The promissory note for Rs. 1000/- was handed over as additional security along with Ext. A2. The note was executed by a Narayanan Nair, the karyastha of the original mortgagee, Krishna Variyar. The case of the plaintiffs is that the amount under the note must have been collected by the mortgagees and it should therefore be given credit. For collecting the promissory note an endorsement thereon was essential. In the plaint no allegation regarding such endorsement appears. It was not spoken to even in the chief examination of the 1st plaintiff. Therefore, it is not established that the promissory note was endorsed in favour of the original mortgagee. There is also no evidence that the amount was paid by the executant of the note to the mortgagees. In this state of evidence, we have to agree with the finding of the lower court on this point.;


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