1. The plaintiff in a suit for redemption of a possessory mortgage and puravaippa having been denied the relief for khas possession in the decrees granted to him by the Courts below has preferred this second appeal.

2. The facts are few and simple. Kidargassery Tharananeilur Illom the jenmi leased on verumpattom an item of land to Kurunhikattil Mamckan and another item to Manali Makkoiha. During the subsistence of these leases the lessor in the year 1080 executed an usufructuary mortgage (Ex. A) and in 1092 a porakadam deed (Ex. E) to Manickan's son and heir, Raman. These are the possessory mortgage and purakadam which form the basis of the suit. In 1081 Makkotha attorned to Raman. After obtaining the purakadam Raman apportioned an amount of Rs. 50/- from out of the mortgage money of Rs. 200/- and a further advance of Rs. 50/- for the puramkadam upon the item in Makkotha's possession as lessee and assigned that part of his rights to Makkotha (Ex. G). The illom assigned its right over both the items to the plaintiff in 1120 (Ex. B). Meanwhile the rights of Makkotha had by several transfers and transmissions details whereof are unnecessary for the case devolved upon Kallata Kochuraman. Kochuraman surrendered the property to the plaintiff. Having thus obtained possession of one of the items on payment of the proportionate part of the mortgage and purakadam amounts he brought the suit for redemption of the other item on payment of the balance amount and claiming khas possession though the mortgagee was not inducted into possession along with the mortgage on the allegation that the antecedent lease terminated with the mortgage where after the relationship between the parties was merely one of mortgagor and mortgagee and not of lessor and lessee.

3. The defence was that the lease did not terminate with but survived the mortgage whose redemption would have the effect of only freeing the property from the encumbrance thereunder leaving the lessee in possession thereof as such. The question that arose for consideration therefore was as regards the effect of the mortgage transaction upon the pre-existing lease. Both the Courts below concurred in the conclusion which was against the plaintiff.

4. The first question in this second appeal is as regards its maintainability in the face of the concurrent finding recorded by the Courts below. If the finding be one of fact and there is evidence to support it, the same cannot be interfered with in second appeal. Here the finding recorded relates to the construction of the two documents of mortgage and puramkadam. The word ‘construction’ connotes and includes both the meaning of words as also their legal effect the former of which may no doubt be a question of fact. In — ‘Chatenay v. Brazilian Submarine Telegraph Co.’, (1891) 1 QB 79 (A), Lord Justice Lindley said:

“The expression construction as applied to a document, at all events as used by English lawyers, includes two things; first, the meaning of the words and secondly their legal effect, or the effect which is to be given to them. The meaning of the words I take to be a question of fact in all cases whether we deal with a poem or a legal document. The effect of the words is a question of law.”

5. The latter is a question of law. When a question of construction in the latter aspect arises not as regards a document which forms merely a piece of evidence in the case but constitutes the cause of action or the root of title of the plaintiff a second, appeal for its consideration is competent. The following extract from the judgment of the Privy Council in — ‘Wali Mohammad v. Mohammad Baksh’, AIR 1930 PC 91 (B) is inescapable as it has said perhaps the last word on the subject.

“Section 100 of the present CPC has replaced Section 584 of the CPC of 1882. These sections are substantially the same in their terms and have often been considered by the Board and the different High Courts in India. No doubt questions of law and fact are often difficult to disentangle, but the following propositions are clearly established: (1) There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of facts, however gross the Page: 586error may seem to be: see — ‘Durga Choudrain v. Jawahir Singh’, 18 Cal 23 (PC) (C); (2) The proper legal effect of a proved fact is essentially a question of law, but the question whether a fact has been proved when evidence for and against has been properly admitted is necessarily a pure question of fact: — ‘Nafar Chandra v. Shukur’, AIR 1918 PC 92 (D); (3) Where the question to be decided is one of fact, it does not involve an issue of law merely because documents which were not instruments of title or otherwise the direct foundation of rights but were really historical materials have to be considered for the purpose of deciding the question: See — ‘Midnapur Zemindari Co. Ltd. v. Uma Charan Mandal’, AIR 1923 PC 187 (E).

In the last cited case the question the Board had to decide was the date of the origin of an under-tenure. The first appellate Court fixed the date from the contents of some documents. No oral evidence had been called in this case. A second appeal would not lie because some portion of the evidence might be contained in a document or documents & the first appellate Court had made a mistake as to its meaning. See — ‘Nowhat Singh v. Chuttar Dharee Singh’, 19 WR 222 (F). The judgment in this case was delivered by Sir Richard Couch under Section 372 of the CPC of 1859, but it has repeatedly been followed in decisions under the Code of Civil Procedures of 1882 and 1908.

“Great reliance was placed by the appellant's counsel on — ‘Dhanna Mai v. Moti Sagar’, AIR 1927 PC 102 (G) but there the tenancy was admitted and the question was whether it was permanent or not, and the solution of it depended upon what was the legal inference to be drawn from proved facts, or in other words, the question was, what was the legal effect of proved facts. The question whether the statutory presumption is rebutted by the rest of the evidence, as in the case here, is always a question of fact. See — ‘Kumeda Prosunna Bhuiya v. Secy. of State’, AIR 1915 Cal 647 (H). This case was recently approved by the Board in the case of — ‘Midnapur Zemindari Co. Ltd. v. Secy. of State’, AIR 1929 PC 286 (I).”

6. The plaintiff's plea that the lease terminated with the mortgage had two bases: First is that the lessee's interest merged in the mortgage right at its acquisition as a large and superior interest and secondly, that on accepting the possessory mortgage there was an implied surrender of the lease-hold. Both the Courts below found against the plaintiff upon each of the above grounds. As in my judgment a consideration of the second ground would suffice as upon it the appellant plaintiff should succeed, the first does not fall to be decided in this case.

7. A lease of immovable property is determined under Section 111, clause (f) of the Transfer of Property Act by implied surrender. That Act is now in force in this State as a central enactment. It had its counterpart in the erstwhile State of Cochin from which area this case arises though it was brought into the statute book only in the year 1112, that is, long after the transaction in question. A transaction has no doubt to be interpreted according to the law existing on its date. Clause (f) of Section III of the Transfer of Property Act is not a statutory provision made for the first time as it only embodies the general principle of law applicable at all times and in all claims. The principle is that whenever a certain relationship exists between two parties in respect of a subject-matter and a new relationship arises as regards the identical subject-matter if the two sets of relationships cannot co-exist as being inconsistent and incompatible, that is to say, if the latter can come into effect I only on termination of the earlier that would be I deemed to have been terminated in order to enable the latter to operate.

8. In a very early case in England where the owner of a ferry Peter having demised it on lease to Brown sued for disturbance of his ferry, the question arose whether the plaintiff had possession which was essential to sustain the action. The plaintiff depended upon an arrangement between the lessee and himself subsequent to the lease under which the lessee agreed to work the ferry as a servant under him as owner. This latter arrangement was depended upon as constituting a surrender of the earlier lease as without it the subsequent arrangement could not be carried out. This was in — ‘Peter v. Kendall’, (1827) 6 B & C 703 at p. 710: 108 ER 610 at 612 (J) where Bayiey J. said:

“I think this case does not admit of any doubt. The first objection is, that the plaintiff was out of possession, and that this action ought to have been brought by Brown, who was entitled to possession as tenant under the demise. To that there is a very satisfactory answer. It appeared at the trial, that when Brown found that he could not keep the ferry at 141 per annum he said to the plaintiff: Will you allow me to be your servant? They settled afterwards upon that footing, and Brown became the servant instead of the tenant of the plaintiff, and the latter received the profits of the ferry, and paid Brown wages for his services as boatman, a new relation, which in regard to this property was wholly inconsistent with that of landlord and tenant, then took place, with the consent of both parties. That operated as a surrender by operation of law of the tenant's interest in the ferry.”

9. The facts of the present case may now be scrutinised to see whether the above principle applies. The rent under the lease was 17 paras and 6 edangalies of paddy and puravaka rent inclusive of land revenue 49 puthens which is equal to Rs. 2-8-10 (one puthen: 10 pies). The property under this lease is the first item in the usufructuary mortgage (Ex. A) and the 2nd item is the one leased to Makkotha. The deed states that the first item is in the possession of the mortgagee already as lessee and the 2nd item is outstanding with Makkotha on lease as regards which the mortgagee is authorised to collect rent from Makkotha or reduce to his possession the property after evicting the lessee on payment of his value of improvements. The income of the property is directed to be appropriated towards the interest upon the mortgage money of Rs. 200. The mortgagee undertakes an obligation to deliver to the mortgagor at his illom two bunches of bananas and one anna for Onam in Chingom of every year from 1081. Unlike the 2nd item, in the case of the first there is no direction to the mortgagee to pay rent though as already stated the fact that it was outstanding with the lessee is recognised.

10. This recognition however cannot be taken to connote the subsistence or continuation of the lease after the mortgage because the document distinctly stipulates that on demand by the mortgagor or mortgagee, they are mutually under an obligation to surrender the property and make payment of the money respectively, that is to say, there should be a surrender of the property on redemption. If this surrender should have any meaning and should be possible an assumption of termination of the pre-existing lease is essential. The acceptance by the mortgagee of the obligation to surrender the property on redemption by payment of the price of redemption, namely, all the mortgage Page: 587money and value of improvements necessarily implies the non-existence of his rights to possession of the property as lessee. A point was raised on behalf of the respondent that there having been improvements effected by the lessee there could not have been a surrender except on payment of the value therefor, and there is no case that there has been such payment.

11. The answer to this is afforded by the document itself which in describing the property mortgaged refers to it as paramba and nilom that is dry and wet lands of a particular extent and the landlord's share of the ‘arazhchas’, that is, trees regarding which the tenant is entitled to compensation on eviction. A tenant effecting improvements over a lease-hold property is entitled to remove them during the subsistence of the tenancy. It is only as regards the unexhausted improvements existing at the time of eviction that the tenant is entitled to claim compensation. If the improvements consist of trees the landlord is entitled to a share of the total value assessed on them. The landlord's share is according to custom ¼th and that of the tenant ¾ths. This proportion has been recognised by statute. To speak of the landlord's share of the improvements effected by the tenant, eviction must be contemplated. Except on conviction the landlord has no share in the improvements of the tenant and when a tenant accepts a possessory mortgage from the landlord of his share of the improvements that conduct is consistent with there having been a surrender of the lease-hold accompanied with a possessory mortgage by the quondam landlord to the quondam tenant with a reservation of the latter's three-fourths right in the improvements as the ¼ share of the landlord is the subject-matter of the possessory mortgage.

12. A mortgagee is according to the customary law entitled to improvements as much as a lessee. It was argued on behalf of the respondent that the reference to the landlord's share of the improvements in the first item need not necessarily mean that the right mortgaged was the right existent ‘in praesenti’ but may relate to a right which may arise in the future that is on eviction of the lessee. Reliance is placed upon a similar term occurring in the description of the second item regarding which there could not be said to have been a surrender then. The argument cannot be accepted because the landlord has mortgaged all his rights including the right to evict the tenant with possession to the mortgagee who is the tenant and that right is no more with him (the landlord) and cannot be exercised by him. It is only when the jenmi is entitled to evict the tenant that the question of his getting a share of the improvements effected by the tenant whose value is to be paid on eviction would arise. Here the possessory mortgage? during the subsistence of the mortgage is the person entitled to evict the tenant; and the mortgagee is himself the tenant. It is inconceivable that the mortgagor can or that the parties contemplated that the mortgagor should be able to evict the tenant independently of the mortgagee. Therefore, the reference to landlord's share of the improvements in the description of the first item of the mortgaged property clearly and necessarily shows that upon the execution of the mortgage and acceptance of it by the mortgagee the antecedent lease stood surrendered and terminated. The description of item 2 on the other hand is not one to which its tenant was a party. The possibility of a mortgage of the landlord's share of the improvements effected by the tenant in anticipation of eviction is involved in the argument urged on behalf of the respondent and such should be the meaning and operation to be given to the description in the second item.

13. The mortgagee undertakes the liability to give two bunches bananas and one anna annually to the mortgagor. These are items of obligation introduced in the mortgage document for the first time which were not among the terms of the lease. The introduction of these new terms cannot be explained as being enhancement of rent, because the landlord is not during the subsistence of the lease entitled to enhance the rent except on an agreement and there is no case set up or suggested anywhere in the pleadings or evidence regarding any enhancement of rent. The amount payable as puravaka including Sirkar tax is only Rs. 2-8-10 under the lease. It is enhanced to Rs. 3-8-0 under the mortgage. This increase in the amount may perhaps be accounted for by the enhancement of land revenue at the Survey and Settlement which were at about the time of the mortgage though the proceedings do not appear to have been completed as the mortgage deed does not give the survey number of the items mortgaged as does the puramkadam of the year 1092. Here also there is no explanation offered as to why the amount was enhanced.

14. It follows from what has been said above that the lease that preceded the mortgage was incompatible, and could not co-exist even in a dormant state as is suggested on behalf of the respondent, with the possessory mortgage. If the lease could not survive the mortgage it must have been necessarily surrendered and terminated. There is, therefore, an implied surrender of the lease, with the execution and acceptance of the possessory mortgage; and as the lease terminates by implied surrender and did not survive the mortgage the possession of the property thereafter by Raman and by his representatives who are the defendants, was and could have been only as mortgagee. The wording of the puramkadam Ex. E which stipulates for appropriation of the interest upon the fresh evidence as well from the property confirms the above conclusion. The puramkadam was about 12 years after the mortgage and the document proceeds on the basis that the mortgagee was in possession of the property as such. The decisions in — ‘39 Cochin 400 (K)’, — ‘40 Cochin 280 (L)’ and — ‘40 Cochin 430 (M)’ support the above view. The construction put by the Courts below upon Ex. A cannot be supported nor can their decree refusing relief by way of khas possession to the plaintiff on redemption be upheld. The second appeal is therefore allowed and in modification of the decrees of the Courts below the plaintiff is given a decree for redemption with khas possession of the properties on payment of the mortgage money of Rs. 200/- (that is, Rs. 250 minus Rs. 50) and Rs. 779-4-0 being the value of improvements fixed by the Munsiff in para 9 of his judgment. The plaint avers that the mortgage amount which can be apportioned upon the plaint property is Rs. 100/- and this is not controverted in the written statements. The amount in fact apportioned upon the other item comprised in the mortgage and paid by the plaintiff for its redemption (see Ex. H) is however only Rs. 50. There is thus a balance of Rs. 200 which is mortgage money due and payable as Ex. E stipulates that the amounts as per the mortgage and puramkadam shall be paid together. On deposit of the price of redemption as aforesaid the properties in the schedule to the plaint shall stand discharged from the mortgage and puramkadam Exts. A and E and the defendants shall surrender to the plaintiff khas possession of the property with all the improvements.

15. The respondents will pay the costs of the plaintiff-appellant here and in both the Courts below.

16. Leave to appeal is granted.

B/G.M.J

17. Appeal allowed.