MUTHUKUMARA PILLAI Vs. THANU IYER
HIGH COURT OF KERALA
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(1.) This appeal arises out of a suit for recovery of properties with rent, past and future. The properties in question belonged to the family of the defendants 1 and 2. These were mortgaged with possession to the plaintiff on 4.10.1106 for a sum of Rs. 6000. The mortgagee took back the properties on lease, agreeing to pay an annual rent of Rs. 630. The lease deed is Ext. A dated 5.10.1106. The only payment made towards rent was a sum of fs. 8,500 paid on 17.3.1112. When the Travancore Debt Relief Act was passed, the mortgagor 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 was 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 mortgagees 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 mortgagee 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. Agnisarmaru (1946 TLR 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 the 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 Debt Relief Act. Ext. VII is copy of the Appellate decision in the Debt Relief Proceedings. It was held by the High Court that the total amount due to the mortgagee-lessor was 70 per cent 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 Chandra Gajnpati Narayana Deo v. Cholla Ramanna and others ( AIR 1932 PC 50 ) it was held by this court in Padmanabhan v. Kumaran Kochen (AIR 1952 TC 383) 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 Jafer ( 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.;
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