Ayimbati Thottathil Narikkot … vs Puthan Peetikayil Charichil … on 29 September, 1937

Madras High Court
Ayimbati Thottathil Narikkot … vs Puthan Peetikayil Charichil … on 29 September, 1937
Equivalent citations: AIR 1938 Mad 263
Author: Horwill


Horwill, J.

1. The appellant usufruotuarily mortgaged certain property to one Moosan, the predecessor-in-title of the respondents. On the same day the land was leased back to the appellant; and so the appellant retained possession of the whole of the property mortgaged. Subsequently, be sub-leased a greater portion of the property to defendant 5. The respondents then brought a suit to evict the appellant from the suit plot, whereupon the appellant put in an application Under Section 33, Malabar Tenancy Act, to purchase the landlord’s right in the property in his occupation. The trial Court found that all the requirements of Section 33 had been satisfied and allowed the petition. In appeal the District Judge felt that the Legislature could not have intended enabling a mortgagor, in circumstances like the present, to avoid his mortgage by a transaction of this kind and that Section 33 was intended to protect tenants, who had long been in possession and had been forced to construct houses or buildings, from eviction from those buildings. He therefore allowed the appeal and dismissed the petition. Hence this appeal by the present appellant.

2. It is with a great deal of reluctance that I have to disagree with the learned District Judge, because I think he is right in his opinion that the Legislature did not intend to protect tenants of this kind. As a mortgagor he ought in equity to be compelled to redeem the whole of the mortgage. By putting in this application Under Section 33, he is enabled to redeem only a portion of the mortgage and thus to avoid the ordinary provisions of the law. However even if the Legislature did not intend Section 33 to be applied to a case where the tenant was the mortgagor of property leased back to him, yet if provisions of law made by the Legislature actually apply to a case, Courts cannot avoid giving effect to them merely because the Legislature did not contemplate such an application. If the appellant, under the plain wording of Section 33, is given a right to redeem a portion of the mortgage only, he cannot lose his rights because it is probable that the Legislature did not have such a case in mind when they drew up the present Act. I have read carefully the definitions of ‘kudiyiruppu’ in Section 3(m) and of ‘tenant’ in Section 3(v) and Section 33, and I find myself unable to distinguish the present case from one in which the tenant was not also the mortgagor. If A had mortgaged the property to Moosan and Moosan had leased it to the appellant, who subsequently subleased a part of it to defendant 5, then undoubtedly the appellant would have the right Under Section 33 that he claims; and the relation of the appellant to Moosan and his successors seems to me to be precisely the same as it would have been if the mortgagor had not been the appellant. Although in some respects the mortgage and the lease back may be considered to be one transaction, yet undoubtedly they operate separately and the appellant was nonetheless a tenant because he was also the mortgagor. The appeal is therefore allowed with costs in this Court and in the lower Appellate Court and the order of the District Munsif restored.

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