THIRUVADANA MALAYALAM COFFEE CLUB, MANAGER KAVASSERI OTTUPURAM GRAMOM GOPALAKRISHNA PATTAR S SON, SWAMINATHA IYER (DIED) Vs. PUTHUKODE GRAMOM SESHAN PATTAR S SON, RAMANATHA IYER

JUDGEMENT

(1.) This second appeal arises out of a suit to enforce a mortgage deed executed by the first defendant in favour of one Ananthu Ammal who assigned her rights to the fourth defendant from whom the plaintiff took in turn an assignment in 1933. The first defendant is the executant of the document on which the suit is brought and defendants 2 and 3 are his sons. The fourth defendant is the assignor of the plaintiff. The fifth defendant who is the appellant in this second appeal was impleaded as a subsequent mortgagee. The property mortgaged was a kanom interest which defendants 1, 2 and 3 had. The period of twelve years under the kanom which was subsisting on the date of the mortgage sued upon, expired after the mortgage and there was a renewal of the kanom about the time of Ex. I dated the nth April, 1932. The fifth defendant paid a sum of Rs. 2,332-12-0 towards the renewal fee in respect of the. above- renewal of the original kanom. The claim advanced by the fifth defendant is that he is entitled to priority in respect of the sum of Rs. 2,332-12-0. The trial Court disallowed the claim of the fifth defendant and on appeal the decision of the trial Court was upheld. When the second appeal at first came on before me, I called for certain findings and the findings have now been returned.

(2.) It is now clear that the fifth defendant was not only a subsequent mortgagee under Exs. V and VI both executed on the 11 April, 1932, but he was also a mortgagee under Ex. III dated the 19 June, 1929. It is also clear that fifteen items are comprised in the suit mortgage and that items 1 to 9 out of them were the subject of the renewal for which the fifth defendant advanced a sum of Rs. 2,332-12-0. The original kanom under which defendant 1 obtained an interest in the suit property was, it is admitted, executed on the 2nd of January, 1909. Ordinarily it would come to an end on the 2nd of January, 1921. The mortgage, in favour of Ananthu Ammal as already stated, was executed on the 10 November, 1917, under Ex. G. Ex. I shows that the renewal fee in respect of that kanom was, paid by the fifth defendant on the 11 April, 1932. On the same day he obtained two mortgages Exs. V and VI executed by defendants 2 and 3. It appears there was a division between defendants 1, 2, and 3, that the father reserved little or no property and that the two sons (defendants 2 and 3) divided the properties equally among them. Out of the sum of Rs. 2,332-12-0 payable for the renewal which the fifth defendant paid, it appears that a sum of Rs. 1,150 was by agreement allotted to the share of the second defendant and a like sum of Rs. 1,150 to the share of the third defendant leaving a sum of Rs. 32-12-0. Ex. VI was executed by the father on behalf of the second defendant Vanchi Aiyar. Ex. V was executed by the third defendant Krishna Aiyar. Ex. VI recites that the arrangement as between the mortgagor and the fifth defendant was that Rs. 1,150 was payable by the second defendant, Rs. 1,150 by the third defendant and Rs. 32-12-0 by the fifth defendant in his capacity as prior mortgagee, evidently referring to Ex. III in the case. Under the mortgage evidenced by Ex. III, the fifth defendant had a mortgage of only item No. 9. The question is whether under these circumstances the appellant (fifth defendant) can claim a charge which would prevail over the plaintiff's mortgage. This claim is advanced by Mr. Rajah Aiyar, the learned advocate for the appellant, on various grounds. One is that under Section 41 of the Malabar Tenancy Act, the landlord is given a charge described in these terms: Renewal fees due to the landlord, if any, shall be a charge on the interest of the person from whom they are due in the holding in respect of which they are due as at the time of the creation of such interest, and such charge shall have priority over all other charges on the same. There are certain exceptions with which we are not now concerned. This charge given to the landlord, it is urged, can be availed of by the appellant as his money went for the payment of the renewal fee. The rules of salvage lien, subrogation and the rule enacted in Section 92 of the Transfer of Property Act read with Section 100 of the same Act are all invoked in favour of the appellant.

(3.) It is urged that but for the payment of the renewal fee, the interest of the mortgagors would have come to an end entitling the landlord to recover possession in which case all rights created by the kanomdar would have come to an end. The. plaintiff's mortgage, the third defendant's mortgage and all other mortgages and any other interest created by defendants 1 to 3 would have disappeared and it is said that the act of the fifth defendant in paying a large sum of Rs. 2,332-12-0 by way, of renewal fee saved the property for the benefit of all and that the principle of salvage lien applied to this case. Reliance is placed on the decision of Varada-chariar and Stodart, JJ., in Chengalraya Reddi V/s. UdaiKavour (1935) 71 M.L.J. (Supp.) 1. Next it is urged that even apart from the doctrine of salvage lien, the fifth defendant is subrogated to the rights of the prior charge holder by the combined operation of Section 92, Clause (1) read with Section 100 of the Transfer of Property Act. It is pointed out that the fifth defendant was a prior mortgagee of one of the items comprised both in the mortgage sued upon and also in the charge created in favour of the landlord under Section 41 of the Malabar Tenancy Act. Therefore, the fifth defendant is a person who had the kind of interest set out in Section 91 of the Transfer of Property Act and hence under Section 92, Clause (1) he would by the mere fact of payment to the prior charge-holder be subrogated to all the rights of that charge-holder. Though it is only a charge that was created in favour of the landlord, it is urged that Section 100 of the Transfer of Property Act as amended in 1929 expressly makes all the prior provisions laid down in the Transfer of Property Act as regards mortgages applicable to the cases of charges. So, it is said, you must treat the prior interest in favour of the landlord as a mortgage and apply the rules laid down in Secs.91 and 92 of the Transfer of Property Act. And lastly it is said that even if Section 92 of the Transfer of Property Act is held inapplicable to cases of charges, the appellant would be entitled to invoke the benefit of what is usually referred to as the doctrine of conventional subrogation. On the other hand, Mr. Sitarama Rao has advanced a very powerful argument that the appellant is not entitled to priority over his client and that none of the rules of law invoked by the appellant would apply to this case. As regards Section 41 of the Malabar Tenancy Act, it is urged that the charge created in favour of the landlord is one personal to the landlord, that it can be enforced only so long as the relationship of landlord and tenant exists between the parties and that if for instance, the landlord conveyed his interest in the property after the transaction of renewal, the charge could not be enforced even by him. It is also said that it is only where a renewal fee is outstanding in pursuance of proceedings taken under the Act (sections 18 to 25) that a prior charge to the extent mentioned in Section 41 would come into existence. It is urged that the landlord is not entitled to insist upon a renewal fee. His only right is to sue for eviction and even then the tenant may submit to eviction rather than claim a renewal. If the tenant claimed a renewal, then under the Act the Court would have to consider his application which would have to be by way of an independent application under Section 22 of the Act. The Court will then have to determine the amount to be paid as the renewal fee, the amount of each instalment, the date on which each instalment would be due and make an order for the deposit within the time to be fixed in the said order of the instalment or instalments on or before the dates fixed. Under Section 25, if the deposit was made as ordered by the Court, the Court should execute a renewal deed on the terms of the expiring transaction. In some cases the amounts may be directed to be paid in instalments, and Mr. Sitarama Rao urges that even before all the instalments are paid, the Court in some cases is given the power to execute a renewal deed and that Section 41 of the Act creates a charge for the unpaid renewal fee only in such cases. The argument comes to this. If the transaction of renewal is without resort to Court, agreed upon between the parties, the landlord must take the amount of the renewal fee before executing the renewal; else he cannot have any charge over the property in respect of any amount which he left uncollected before the renewal was granted. Section 41 of the Act would not apply to such a case is the argument.