SIVANU CHETTIAR MUTHUKUMARU PILLAI Vs. SIVARAMA IYER THANU IYER AND ORS.
LAWS(KER)-1955-9-18
HIGH COURT OF KERALA
Decided on September 07,1955

Sivanu Chettiar Muthukumaru Pillai Appellant
VERSUS
Sivarama Iyer Thanu Iyer And Ors. Respondents

JUDGEMENT

- (1.) THE appeal arises out of a suit for recovery of prepares with rant, past and future. The properties to a question belonged to the family of Defendants 1 and 2. These were mortgaged with the Plaintiff on 4 -10 -1106 for a sum The mortgagor took back the roper's, agreeing to pay an annual rent of 30. The lease deed is Ex. A dated 5 -10 -1106. Only payment made towards rent was a sum paid on 17 -3 -1112. Travancore Debt Relief Act was lessee applied for payment of the debts due under the mortgage and the lease transactions, according to the provisions of that Act. The District Judge of Nagercoil allowed the application, holding that the mortgage and lease constituted a transaction in the nature of a hypothecation. On appeal by the mortgagee, it was held that these were distinct transactions and that the mortgage debt alone could be paid under the provisions of the Act. The statutory percentage of the mortgage debt was paid within two years of the date of the commencement of the Act, such payment having been completed on 22 -1 -1118. When the petition under the Debt Relief Act came up for final orders, the mortgagee raised a contention that the mortgagor was not entitled to pay off the mortgage debt alone as the arrears of rent constituted a charge on the properties and that such rent also had to be paid before redemption could be allowed. This plea was overruled by the trial Court. The mortgagee preferred an appeal to the High Court of Travancore but the same was dismissed. Before the disposal of the proceedings under the Debt Relief Act, the mortgagee lessor had instituted the present suit, claiming recovery of possession of the properties on the basis of the lease with rent, past and future. The trial Court dismissed the prayers for recovery of possession as well as the rent after 22 -1 -1118, the date on which the mortgage debt was paid. The Plaintiff has preferred this appeal from the decree and he claims recovery of possession of the properties as well as rent which accrued after 22 -1 -1118.
(2.) THE grounds on which the lower Court based its decision were that the lease transaction ceased to exist after the extinguishment of the mortgage debt and that the Plaintiff was concluded by the final order in the Debt Relief Proceedings from contending that the relationship of lessor and lessee continued after 22 -1 -1118. The correctness of these conclusions is questioned by the Appellant and it is argued that the mortgage could not be said to have been redeemed before payment of the rent which was also a charge on the properties and that so long as the rent remained unpaid, the mortgagee's rights as lessor remained unimpaired.
(3.) THE question whether the mortgage could be redeemed without payment of the rent due was specifically raised by the mortgagee in the Debt Relief Proceedings. It was urged at that stage that a mortgagor seeking redemption of the mortgage was bound to pay off other charges on the property under which money was due to the mortgagee. The decision of the High Court of Travancore in Subramonian Bhaskaran Moothathu v. Agnisar -maru,, 1946 KERLR 546 upholding this principle was relied on. It was however held by the High Court that the Debt Relief Act did not warrant the application of this principle, that the mortgagor was entitled to redeem the mortgage on payment of the statutory percentage of the debt under the Debt Relief Act and that such payment having been made, the relationship of mortgagor and mortgagee came to an end. The mortgagee insisted in the Debt Relief Proceedings on payment of the rent which had accrued after the date of payment of the mortgage money, along with the mortgage debt. The trial Court left open the question whether he was entitled to get rent after 22 -1 -1118. However, the mortgagee -lessor took up the matter in appeal and pressed for a finding on this question which involved decision as to the amount payable by the mortgagor to get a discharge under the Debt Relief Act. Exhibit VII is copy of the appellate decision In the Debt Relief Proceedings. It was held by the High Court that the total amount duo to the mortgagee -lessor was 70 percent of the mortgage money and the rent due till 22 -1 -1118 and that such rent need not be paid to extinguish the mortgage debt. It was also held that the liability to pay rent ceased on 22 -1 -1118. It was argued on behalf of the Appellant that the question whether rent would cease to accrue after 22 -1 -1118 was not necessary for the decision of the matters involved in the Debt Relief Proceedings and that such decision would not operate as res judicata. We are unable to uphold this contention. The Debt Relief Proceedings involved decision as to the amount payable by the debtor to get a complete discharge and the contention of the mortgagee was that such amount included the rent under the lease transaction even after 22 -1 -1118. The parties were thus at issue on this point and even if the petition under .the Debt Relief Act could be decided without a decision on this point, it is not open for the Appellant to plead that the said decision would not operate as res judicata. Following the decision of the Privy Council in Krishna Chendra Gajapati Narayana Deo v. Challa Ramanna : AIR 1932 PC 50 (B), it was held by this Court in Madhavan Padmanaghan v. Kumaran Kochan AIR 1952 KER 383 (C) that even if a point was not properly raised by the plaint, if both parties had without protest chosen to join issue upon that point, the decision on the point would operate as res judicata. This view was followed by this Court in another case Idicula Mathoo v. Mohamed After, 5 DLR TC 337. It was the Appellant who pressed for a decision on this point in the former proceedings and he cannot now be permitted to say that the finding would not operate as a bar to his raising the same point in this suit. Even apart from the question of res judicata the view of the lower Court that the relationship of lessor and lessee did not and could not subsist after 22 -1 -1118 when the mortgage was extinguished, must be upheld. The foundation of the lease was the mortgage and when that disappeared, the mortgagee lost his status as lessor. The charge for arrears of rent is not the interest which enabled the mortgagee to lease the property and the charge was only the consequence of the lease. The interest of the lessor came to an end with the determination of the mortgage notwithstanding the fact he had to get the rent charged on the properties. We are not called upon to decide whether the view held in Ex. VII that the mortgage could be redeemed without payment of the rent charged on the property is correct because the finding in Ex. VII on this point is binding on the Appellant and the Court was competent to decide that question in the former proceedings. The question now raised, viz., whether the mortgagor can be allowed to redeem the mortgage without payment of the amount due under the other charges on the property is no longer open for decision. It was decided in the Debt Relief Proceedings that the mortgage could be redeemed by payment of the mortgage money. It may b mentioned that in A.S. Nos. 199 of 1122 and 41 of 1123 (D), it was held by the High Court of Travancore that the lease could not subsist when the mortgage was extinguished by payment of the mortgage debt under the Debt Relief Act. We are! in full agreement with this view. In these circumstances, the decree of the Court below must be affirmed. In the view that we take, it is unnecessary to consider the point raised by Respondents 5 and 6 relating to items Nos. 6 to 9 in the plaint schedule.;


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