ABRAHAM MATHEN Vs. KOTTAYAM BANK LTD
LAWS(KER)-1955-9-9
HIGH COURT OF KERALA
Decided on September 22,1955

ABRAHAM MATHEN Appellant
VERSUS
KOTTAYAM BANK LTD. Respondents

JUDGEMENT

- (1.) The question that arises for consideration in this appeal by the plaintiff is whether Ext. A, being a deed styled as Sthreedhanam Udampady executed by Punnen Chacko, the owner of the plaint schedule properties, has the legal incidents of a mortgage or a sale. The second plaintiff is the daughter of Punnen Chacko and at the time of her marriage with the first plaintiff the deed in question was executed and the property handed over. It was stated there that balance of the dowry coming to Rs. 650 had to be paid and for that the property was handed over, it being stipulated that in case within two years the said amount was paid the property was to be returned to the executor. On default of such payment they were to enjoy it with full proprietary rights. The defendant bank attached the property in execution of a decree obtained against Punnen Chacko long after the expiry of two years from the date of Ext. A. The plaintiffs filed a claim petition contending that as per the terms of Ext. A the ownership had vested in them and it was not liable to be attached for Punnen Chackos debt. On the claim petition being dismissed they filed the suit to establish their right. Both the lower courts have rejected the plaintiffs claim. According to the lower appellate court the clause in the deed regarding vesting of full rights in the executees in case of failure to pay Rs. 650 within the time stipulated is only a clog on redemption and hence unenforceable. On behalf of the appellants it is contended that the deed evidenced a sale with a condition of retransfer and the interpretation placed upon it by the lower courts is wrong. The reference to the decision in Goodman v. Griersol as given in Revised Reports, Vol. XII, page 82, is relied upon to support this position. This decision is referred to in Narayanan v. Kochupennu, 1953 KLT 743 at 747. It is pointed out there that in that case the conveyance was taken in lieu of the dowry and not as a security. In the present case the wording in Ext. A indicates that here the property was handed over only as security. The nomenclature of the document, the provision regarding payment of rent by the executees till the expiry of two years only on behalf of the executor and other clauses in the deed go to show that the intention of the parties was to create the relationship of debtor and creditor and not that of a transferor and transferee. The decision in 1953 KLT 743 is fully applicable to this case. The deed here is just like one that came up for interpretation there. Soosa Pillai v. Azhakiyanembia Pillai, 1950 KLT 109 cited by the lower court also supports the defence position. What is pointed out in Chum Chum Jha v. Ebadat Ali, AIR 1954 SC 345 is that the character of a document like this is to be found out from the clauses in it, the rule of law on the subject being one indicated by common sense and the court having to see whether it evidenced an absolute conveyance containing nothing to show that the relationship of debtor and creditor was created or a mortgage involving such a relationship. In the present case it has to be held that Ext. A is only a mortgage with possession.
(2.) Another point urged on behalf of the appellants is that the right to the value of improvements as mortgagees in possession has to be upheld any way and that the order on the claim petition recognises their right only to Rs. 650 and not to the value of improvement. So it is claimed that this has to be modified. I think that this contention has to be upheld. Ext. A clearly evidences a mortgage with possession and hence the mortgagees right to the value of improvements cannot be questioned. So the attachment is valid only subject to the right of the plaintiffs to Rs. 650 and value of improvements, if any, as mortgagees in possession. This is the only relief the appellants are entitled to.
(3.) In the result the appeal is allowed to the said extent. The appellants will pay the costs of the respondent.;


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