- Bookmark
- Share
- CaseIQ
Sankara Pillai v. Ittiera .
Factual and Procedural Background
The appellants, plaintiffs in the suit, sought redemption of a usufructuary mortgage which was dismissed by the lower court on the preliminary ground that the suit was premature. The mortgage was executed on 13-10-1945 in favour of the 1st defendant by the karnavan and senior anandaravan of a Mana governed by the Travancore Malayala Brahmins' Act. The mortgage secured a sum of Rs. 7,500/- by discharge of debts binding on the Mana and included 22 property items, possession of five of which was delivered to the 1st defendant. The mortgage was to run for 12 years after the 1st defendant took possession of all mortgaged properties, including eviction of tenants if necessary.
The 1st defendant took steps to obtain possession by filing 13 suits and succeeded in acquiring possession of most properties within three years. However, due to Travancore-Cochin Act VIII of 1950 and subsequent legislation, eviction of remaining tenants was stayed, making it impossible for the 1st defendant to obtain possession of all properties as contemplated.
The plaintiffs purchased the mortgaged properties from the Mana in January 1952 and filed the present suit for redemption in March 1952, contending that the 12-year term was void for indefiniteness and that the mortgage contravened the Travancore Malayala Brahmin Act. The lower court dismissed the suit as premature without addressing other contentions.
Legal Issues Presented
- Whether the term of 12 years specified in the mortgage deed, running from the date the 1st defendant obtains possession of all properties, is enforceable given the legislative impediments to possession.
- Whether the 12-year term should instead run from the date of the mortgage deed itself.
- Whether the mortgage is invalid or void under Sections 5 and 6 of the Travancore Malayala Brahmin Act.
- Whether the suit for redemption filed before the expiry of the 12-year term was premature.
Arguments of the Parties
Appellants' Arguments
- The 12-year term in the mortgage deed is void for indefiniteness because it depends on the 1st defendant obtaining possession of all properties, which has become impossible.
- The mortgage contravenes the Travancore Malayala Brahmin Act, rendering it invalid.
- They are entitled to redeem the mortgage notwithstanding the specified term.
1st Defendant's Arguments
- The suit was premature as the 12-year term had not expired at the time of institution.
- The term of 12 years should run from the expiry of the six-month period allowed for eviction suits post-registration.
- The mortgage is valid and enforceable despite the legislative impediments.
- Other contentions such as an alleged agreement for sale in his favour were also raised but not addressed by the lower court.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court found that the parties intended a minimum term of 12 years for the mortgage, but the starting point could not be the date the 1st defendant obtained possession of all properties, as this had become impossible due to supervening legislation. Strict adherence to the deed's terms would render the mortgage irredeemable, constituting a clog on the equity of redemption and thus void.
The court rejected the argument that the 12-year term should commence after the six-month eviction period post-registration, noting that the document made no provision for failure to obtain possession and that indefinite postponement by the 1st defendant would be unjust.
It was held that the 12-year term should run from the date of the mortgage deed (13-10-1945). The court also reasoned that frustration of the possession condition by legislation did not relieve the parties of the mortgage obligation but required adjusting the term's commencement accordingly.
The argument that the mortgage was invalid under Sections 5 and 6 of the Travancore Malayala Brahmin Act was not accepted. The court noted that the plaintiffs, having purchased the properties subject to the mortgage, had affirmed it. It is settled law that alienations beyond a karnavan's authority are not nullities but may be affirmed by junior members.
The court acknowledged the suit was premature when instituted in 1952, but since the 12-year term expired in 1957, the mortgage had become redeemable. To avoid unnecessary litigation and hardship, the court allowed consideration of subsequent events in granting relief, subject to preserving substantive rights and requiring plaintiffs to pay costs incurred by the 1st defendant to date.
Holding and Implications
The court allowed the appeal, set aside the lower court's dismissal, and remanded the suit for retrial on remaining issues.
The plaintiffs were ordered to bear the costs of the appeal and to pay the 1st defendant's costs incurred so far in the suit and appeal. The costs of the suit going forward will await the final outcome.
This decision directly affects the parties by permitting the plaintiffs to redeem the mortgage after the expiry of the 12-year term calculated from the date of the mortgage deed, despite legislative impediments to possession. No new precedent was established beyond these facts.
Raman Nayar, J.:— The appellants are the plaintiffs whose suit for the redemption of a usufructuary mortgage has been dismissed by the court below on the preliminary finding that it is premature.
2. Ext. B is a copy of the mortgage in question. It was executed in favour of the 1st defendant on 27-2-1121 M.E (13-10-1945) by the karnavan and senior anandaravan of a Mana governed by the Travancore Malayala Brahmins' Act (Act III of 1106). Before its registration on 4-5-1121 (18-12-1945) the entire consideration of Rs. 7,500/- was paid by the discharge of debts binding on the Mana and secured on its properties. Of the 22 items of properties comprised in the mortgage, possession of five items, of which the Mana was in actual possession, was made over to the 1st defendant. For the rest, the 1st defendant was required to evict the tenants in actual possession, filing suits, if necessary, within six months of the registration of the document and adding the expenses thereof to the mortgage money; and the mortgage was to run for a term of 12 years after he had reduced the properties in the hands of the tenants to his possession. (It would appear that one of the items of properties was held by a stranger on kanom. He could not, in any event, have been evicted. But this seems to have been overlooked).
3. The 1st defendant accordingly proceeded to reduce the properties to his possession. He filed 13 suits for the purpose and within three years of the mortgage was able to obtain actual possession of all but five items of properties. Then, by reason of Travancore-Cochin Act VIII of 1950, which stayed the eviction of tenants he was prevented from proceeding further. By succeeding enactments the stay has been continued, and it is clear that there is no prospect of the 1st defendant ever being able to obtain actual possession of the remaining five items as contemplated by the mortgage deed.
4. By Ext. A dated 22-1-1952, the two plaintiffs bought the properties covered by the mortgage from the Mana (the sale deed in their favour being by all the members of the Mana), and on 23-3-1952 they came forward with the present suit for redemption claiming that they were entitled to ignore the term of 12 years specified in the mortgage deed because it was void for indefiniteness and also by reason of the fact that the mortgage itself was against the provisions of the Malayala Brahmin Act. The Court below rejected this claim and upheld the 1st defendant's contention that the suit was premature. Accordingly it dismissed the suit without going into the many other contentions (such as an alleged agreement for sale in his favour) put forwad by the 1st defendant.
5. It is clear that the parties intended that the mortgage should run for a minimum period of 12 years; and about that there is no vagueness or indefiniteness. It is equally clear that the starting point cannot be that contemplated in the document, namely, the date on which the 1st defendant reduces all the properties to his actual possession. For, that has now become impossible by reason of the supervening legislation, and a strict adherence to the letter of the deed would mean that the mortgage could never be redeemed. That would be a clog on the equity of redemption and void on that account. Even without the supervening legislation, so far as the mortgage deed goes, there seems to be nothing to prevent the 1st defendant from indefinitely postponing entering into possession of one trifling item of property and thus making the whole mortgage irredeemable. No doubt, the document contemplates that the 1st defendant should institute suits in ejectment within six months of the registration of the document, if that becomes necessary for the purpose of obtaining possession from the tenants. But no provision is made anywhere as to what is to happen if the 1st defendant fails to get possession either by reason of his own default or by reason of his suit in ejectment being dismissed. In that event the mortgage would become irredeemable and for this reason alone we think that the term in the document that the 12 years is to run from the date on which the 1st defendant obtains possession of all the properties is bad and cannot be enforced. At the same time as we have already observed, it is abundantly clear from the document that the parties to it contemplated a minum term of 12 years, and in our view this term of 12 years should run from 27-2-1121 (13-10-1945), the date of the document. We are unable to accept the argument advanced on behalf of the 1st defendant that the clause in the document requiring the 1st defendant to file the necessary suits within six months of its registration bespeaks an intention to allow that period as the maximum period for the purpose of the 1st defendant evicting the tenants and obtaining actual possession and that therefore the term of 12 years should run from the expiry of that period, in other words, from 4-11-1121 (18-6-1946).
6. We consider that for another reason also the term of 12 years can run only, from the date of the document. That is because one of the terms of the contract, namely, that the 1st defendant should be in actual possession of the properties for a period of 12 years has been frustrated by subsequent legislation. The result is that the mortgage must run its stipulated term of 12 years from the date of its commencement without the subsequent starting point which the parties had in mind and which has now become impossible. We are unable to agree that this term of 12 years must commence from 1124 when the supervening impossibility occurred, for the result of a frustration is to relieve the parties altogether from the obligation of the contract.
7. The argument based on the provisions of Sections 5 and 6 of the Travancore Malayala Brahmin Act, that the mortgage itself was beyond the competence of the executants thereof and that the term of 12 years provided by the document is therefore bad does not impress us. In the first place the suit itself is for the redemption of that very mortgage (not for possession subject to the payment of the debts discharged by the 1st defendant) and it is rather strange that while seeking to redeem it the plaintiffs should object to one particular clause on the ground that the entire mortgage is bad. That apart, it is settled law that an alienation by a karnavan in excess of authority is not an entire nullity and that it is a transaction which the junior members of the family can, at their choice either affirm or avoid. Ext. A, the sale deed in favour of the plaintiffs by all the members of the Mana expressly states that the sale is subject to the mortgage in favour of the 1st defendant and is therefore an affirmance of that mortgage. It would have been a different matter if the sale deed had said that the Mana was not bound by the mortgage or if the mortgage had been altogether ignored. Clearly it is not open to the 1st defendant to question the mortgage.
8. The 12 years period from 13-10-1945, the date of the mortgage, has now expired (on 12-10-1957) and the mortgage has become redeemable. But it had not expired on 23-8-1952, the date of the institution of the suit. The suit was doubtless premature when it was brought, but since the mortgage has now be come redeemable we think it would be unnecessary and unjust to drive the plaintiff to a separate suit. To mitigate hardships of this kind and shorten litigation, it is open to a court to take note of subsequent events in granting relief provided the substantive rights of the parties are unaffected. But, in order to put the 1st defendant in the position he would have occupied had the plaintiffs brought the suit only after the expiry of the term of the mortgage, we think it proper that the plaintiffs should pay him the costs incurred by him so far.
9. In the result we allow the appeal, set aside the dismissal of the lower court and remand the suit to it for retrial on the remaining issues. The plaintiffs will, irrespective of the eventual result, bear the costs of this appeal and also pay the 1st defendant the costs so far incurred by him, both in the suit and in the appeal. The plaintiff's costs in the suit and the costs to be incurred hereafter will abide the result.
Alert