1. In this second appeal, on behalf of the plaintiff-appellant,, his learned counsel Mr. K. Velayudhan Nair raises two contentions; (1) that in the circumstances of this case the patta for Kandukrishi lands obtained by the defendant in the proceedings evidenced by Ext. E enure in favour of his client on the principle embodied in Section 90 of the Trusts Act and therefore the view expressed to the contrary by both the subordinate courts is not sound in law; and (2) that the further view expressed by both the subordinate courts that when the patta for the kandukrishi land was granted by the Sirkar under the proceedings connected with Ext. E in favour of the defendant, it does have the effect, in law, of putting an end to the mortgagor-mortgagee relationship that exists in this case is also not correct in law.
2. In order to appreciate these two contentions raised by the learned counsel, a few facts may be stated. The suit properties, which are kandukrishi lands, were held on lease by the original owners who appear to have mortgaged their rights under Ext. C on 10-6-1057 in favour of the defendant's predecessors-in-title. Ultimately, the rights of the original lessee have now devolved on the plaintiff Devaswom by virtue of the purchase under Ext. E dated 24-10-1058.
3. It is in evidence that at the time of the settlement the question of grant of the lease of the Kandukrishi lands seems to have been taken up by the Government and for that purpose, in respect of the suit lands as well as certain other items of property, both the plaintiff mortgagor, as well as the defendants mortgagee laid claim for the issue of patta in their favour. It is also seen that the suit properties were held as mortgagee by the defendants and there were certain other items of properties owned by the Devaswom which were held by the defendants on lease. The ultimate result of both the transactions is that the defendants were in possession of both sets of properties.
4. I am only just mentioning this to show that in respect of the properties which were held by the defendants on lease, notwithstanding the fact that he was in possession as a tenant, the lease of the kandukrishi lands was ultimately given in favour of the plaintiff himself in those proceedings.
5. So far as the present lands are concerned, both the parties, namely, the Devaswom as well as the defendants, laid claim, each urging in the circumstances their special claims to get a right from the Government. The inquiry itself, as evidenced by Ext- E, lasted nearly 20 years and several statements were taken from the parties as also reports called for from the various departments concerned. Ultimately, it is seen that the lease of the kandukrishi lands was granted by the Sirkar in favour of the defendants.
6. Notwithstanding these circumstances, the plaintiff instituted the present action, for what is called redemption, of the mortgage under Ext. Cdated 10-6-1057. The defence was that in viewof the grant of right in respect of this kandukrishi land by the government in favour of the defendants, the relationship of mortgagor and mortgagee has become extinguished and therefore the paintiff has no further right to redeem.
7. This contention raised on behalf of the defendants has substantially found favour with both the subordinate courts. The learned District Judge has also adverted to the principle of resulting of constructive trust and found that there is no room for applying that doctrine because both the mortgagor and mortgagee contested and the defendant was chosen by the Government. This view expressed by the subordinate court is attacked by Mr. Velayudhan Nair in this second appeal.
In my opinion there is no scope for the application of Section 90 of the Trusts Act, for the simple reason that both the manager and the mortgagee openly fought before the Sirkar for getting the rights' of Kandukrishi tenant in respect of these properties. Both of them urged their special claims but it is seen that the plaintiff lost in that fight, so far as the suit properties are concerned, though he got those rights in respect of the properties which were outstanding on lease with the tenant.
Though Mr. Velayudhan Nair referred to a decision of the Patna High Court reported in Bishunath Tewari v. Mst. Mirchi, (S) AIR 1955 Pat 66 in my opinion, the circumstances existing in that case are totally different from the facts before me. In my opinion that decision will not assist Mr. Velayudhan Nair for invoking the principle of constructive or resulting trust on the basis of Section 90 of the Trusts Act. Therefore, the learned Judge's view that the principles of constructive trust will not really apply is perfectly justified.
8. So far as the next contention of Mr. Velayudhan Nair is concerned, namely, that the effect of a lease of these kandukrishi lands in favour of the defendants by the Sirkar in the proceedings connected with Ext. E does not have, in law, the right to extinguish the relationship of mortgagor and mortgagee, I am not able to accept it. He further contended that (he mortgagor has certainly still some rights as the owner of the equity of redemption which he can certainly enforce.
Mr. Velayudhan Nair also contended that the action of the Sirkar, in any event, is not justified because it is not as if the Sirkar can take away the rights which have already been conferred on one person, in this case the plaintiff, and confer it on another without any reason whatsoever. So far as this aspect is concerned, Mr. K.P. Abraham, learned counsel, referred to two direct decisions of the Travancore High Court reported in Sankaranarayana Panicker v. Kunjan Pillai, 26 Trav LR 184 and Parameswaran Govindan v. Ouseph Geevarghese Kathanar, 29 Trav LR 100.
Mr. Velayudhan Nair was prepared to accept that these decisions are directly against the contentions raised by him in this second appeal and these decisions lay down that in circumstances like these, the mortgagor-mortgagee relationship will stand extinguished. But Mr. Velayudhan Nair referring to a later decision reported in Narayanan Empran v. Govindan Plappalli, 22 Trav LJ 968 submitted, thatCertain observations in this latter decision may probably have the effect of striking a note of dissent regarding the views expressed in the earlier decisions referred to above about the absolute right of the Sirkar to cancel a lease of Kandukrishi lands.
I have gone through all these judgments and I am not able to find that the decision in the latter case in any way casts any serious doubt about the proposition of law as such laid down in the previous decisions. The question directly arose in the first mentioned case, namely, 26 Trav LR 184 and it directly applies to the facts of this case.
But so far as the decision in 22 Trav LJ 968 is concerned, the question that arose was not as between the State and the lessee but about what exactly are the rights of a third party creditor in respect of the person who owns a lease of kandukrishi land. In my opinion, there is no real conflict between the various decisions. The earliest decision, namely, that reported in 26 Trav LR 184 was given as early as 1108 and it has stood the test of time all these years. I am in respectful agreement with the views expressed by the learned Judges in that decision and subsequently in the decision reported in 29 Trav LR 100.
9. Mr. Velayudhau Nair also referred me to the decision of their Lordships of the Supreme Court in Sidhakamal Nayau. v. Bira Naik, AIR 1954 SC 336. Their Lordships had more to deal with the rights of a purchaser of the tenancy rights in the light of the provisions contained in Section 225 of the Orissa Tenancy Act and that has no bearing so far as the present controversy is concerned.
It is seen form the judgment of the Supremo Court that a person so obtaining possession under Section 225 of the Orissa Tenancy Act becomes a statutory mortgagee. Their Lordships state that as mortgagee whose rights are liable to be redeemed, he is bound to protect the interests of the mortgagor tenant and bound to pay the rent without committing default and that as such he cannot take advantage of his own default to deprive the mortgagors of their property.
Therefore, their Lordships held that the purchase so made by the mortgagee, enures for the original mortgagor tenant as the mortgagee should be considered to hold the purchase as trustee for the former and as such bound to return the property on being reimbursed for whatever he spent for it. Therefore, it will be seen that this decision also has no application to the present case.
10. In the result, the second appeal fails and is dismissed with costs. No leave.