KINANTHI SUSEELA Vs. NAMBIATHAN BHATTATHIRIPAD
HIGH COURT OF KERALA
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(1.) THE second appeal raises a short point under S. 61 of the Transfer of Property Act. THE plaintiff filed the suit for redemption and recovery of possession based on Ext. Al registered kana kychit dated 7-12-1890 executed by Ullanoor Parameswaran Namboodiri to the predecessor of the plaintiff. Though the suit was once decreed, by the trial court it was set aside in A. S. 6 of 1956 on the file of the Ottapalam Sub Court and the suit was remanded to the trial court for trial under Act 4 of 1961. After remand the plaintiff amended the plaint to the effect that if he is not entitled to recover possession of the plaint property he should be allowed to redeem the puramkadam charge and from the date of such redemption he should be given a decree for recovery of enhanced purappad under the document.
(2.) THE courts below found that in view of Act 4 of 1961 the plaintiff is not entitled to a decree for recovery of possession. But a decree was granted allowing the plaintiff redemption of the puramkadam charge and enhanced purapad. THE second appeal is filed by the defendants.
The plaint property admittedly belongs to the Mana of the plaintiff. The Mana had executed a kanom in favour of Ullanoor Mana for Rs. 50/-and made a further advance of Rs. 950/-on the same security. A composite kanam document was executed to the Ullanoor Mana by the Mana of the plaintiff for Rs. 1000/-and Ext. Al is the counter executed by the transferee in favour of the transferor. The recital in Ext. Al is as follows:
The courts below found that prior to the date of Ext. Al the sum of Rs. 950/-was advanced under a separate document on the same security. Under S. 61 of the Transfer of Property Act "a mortgagor who has executed two or more mortgages in favour of the same mortgagee shall, in the absence of a contract to the contrary, when the principal money of any two or more of the mortgages has become due, entitled to redeem any one such mortgage separately or any two or more of such mortgages together. " It is not suggested that there is a contract to the contrary in the kanom deed which prevents the plaintiff from redeeming the puramakdam alone. Normally, therefore since the redempt ion of the kanam is not possible because of the tenancy legislation the plaintiff is entitled to redeem the puramkadam and consequently entitled to get an exces of purapad. But the learned counsel for the appellant relied on the decision in Narayana Pillai v. Lakshmanan 1961 KLT. 52 to support him. The said decision proceeded on an interpretation of the document which contained a recital that, on demand, the mortgagor would pay the amounts due under the mortgage and the puramkadam and obtain a release. There was in that case a contract to the contrary within the meaning of S. 61 of the Transfer of Property act which cannot therefore help the appellants But the following observations of Raman Nayar. J, were stressed before me by the counsel for the appellants: "further, it seems to me adundantly clear that the view taken by the first court that the plaintiff was bound to deposit also half the amount covered by the deed of 21-2-1957 is right. That deed calls itself a purakkada adharam and describes the amount advanced thereunder as Puramuri. These very terms imply that the amount due under the deed of further charge is payable with the original mortgage amount, in other words, that the effect of the transaction is to increase the principal of the original mortgage by the amount subsequently advanced see the definition of 'puramkadom' at page 456 of sundara Aiyar's Malabar and Aliyasanthana Law, 1922 Edition. The terms of the document also are in keeping with the name given to it by the parties, for, there is the express recital that, on demand the mortgagor would pay the amounts due under both the documents together and obtain a release of the property and, further that in the event of default the mortgagee could sue and recover both the amounts together. from the mortgagor and oat of the property. This is clearly a contract to the contrary excluding the operation of S. 61 of the Transfer of Property Act and giving the mortgagee the right of consolidation. "
(3.) RELYING on the above observations, it was contended before me that the amount advanced under the puramkadam being only an enhancement of the principal amount covered by the kanom no separate redemption is possible. The meaning of the term "puramkadam" extracted in the above passage is from the glossary in Sundara Aiyar's Malabar and Aliyasanthana law. But the learned author at page 300 of that book says: "puramkadam is further advance made by the kanomdar on the saecurity of the land. Interest is usually deducted from the michavaram. Whether the amount was payable before the redemption of the kanom arose in kunhi Amma v. Ahmed Haji, (1889) I. L. R. 23 Madras 105. There was a difference of opinion in the case; Mr. Justice Moors holding that under the customary law it could not be "redeemed earlier; the other judges holding the contrary. In S. A. 2178 of 1916 it was held that the mortgagor was bound to redeem the puramkadam also. The question is one of construction and not of usage. "
The finding of the courts below do not therefore call for any interference. I dismiss the second appeal with costs.;
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