Ayyankunhi Anandiravan vs Krishanan Anandiravan and Another

Plaintiff is the Appellant. The plaint property, which originally belonged to the Plaintiff was mortgaged under Ex. A dated 23-7-1103 in favour of one Krishnankutty who was at that time a minor. The mortgage deed was executed by Lakshmikutty Amma the mother of Krishnankutty for and on behalf of the minor. The Plaintiff had taken back the property on lease from the mortgagee, and for the arrears of pattom due from him Lakshmikutty Amma obtained the decree in O.S. NO 634 of 1103 on the file of the Ernakulam District Munsiff''s Court. That was a decree for recovery of the property also from the lessee. As per the agreement entered into by the parties and which was embodied in M.P. No. 1965 of 1116, Lakshmikutty Amma got possession of the property. Subsequently the Plaintiff wanted to close the mortgage transaction and to obtain a portion of the property for himself. Accordingly himself and Lakshmikutty Amma entered into an agreement whereby 34 cents out of the 66 cents of the mortgaged property were surrendered to the mortgagee in full satisfaction of the mortgage amount and in extinguishment of the mortgage transaction, and the remaining 32 cents were surrendered by Lakshmikutty Amma to the Plaintiff in Vrischigom 1118. Exhibit II dated 3-4-1118 is the formal deed of assignment in respect of the 34 cents agreed to be transferred in favour of the mortgagee. This agreement was got prepared and it was signed by the Plaintiff. All these facts are admitted by the Plaintiff.

But before Ex. II could be got registered, some difference of opinion arose between the parties and hence Ex. II could not be registered. All the same the parties continued to be in possession of the respective portions of 32 cents and 34 cents of the property as already stated. Since Ex. II has not been registered, the Plaintiff has instituted the present suit for redemption of Ex. a mortgage. His contention is that the agreement to assign 34 cents of the property in favour of the mortgagee in extinguishment of the mortgage transaction, has not become final and conclusive on account of the failure to have the document Ex. II registered and that therefore, he is entitled to redeem the mortgage. The Defendant resisted the suit and contended that the mortgage is not subsisting and that the mortgagee is in possession of 34 cents of the property as the full owner thereof and that the suit for redemption is not maintainable. Both the lower Courts have upheld the contentions of the Defendants and have dismissed the Plaintiff''s suit. Hence this second appeal.

On the facts admitted and also concurrently found by both the lower Courts, it is clear that there was an agreement between the parties to extinguish Ex. A mortgage by transferring 34 cents of the property by the Plaintiff in favour of the mortgagee and in getting back the remaining portion of 32 cents for the Plaintiff-mortgagor himself. In accordance with this agreement, the mortgagee surrendered 32 cents of the property in favour of the Plaintiff and that portion of the property is admittedly in the possession of the Plaintiff. The other portion of 34 cents is admittedly in the possession of the Defendants. It is also clear from Ex. II that such a mutual transfer of definite portions of the properly was effected in pursuance of a contract for satisfying the claim under the mortgage deed and for extinguishing the same. The terms of such a contract are clearly gatherable from Ex. II. Thus all the essential elements of the doctrine of part performance as embodied in Section 54, Cochin T.P. Act (Section 53A of the Indian Act) are satisfied in the presort case. There was a contract to transfer 34 cents of the property by the Plaintiff to the Defendant. The consideration for such transfer represented the mortgage amount due to the Defendants and by such transfer the mortgage was to be extinguished. The mortgagee accordingly retained possession of 34 cents and surrendered the remaining 32 cents to the Plaintiff mortgagor. Ever since the date of Ex. ix the parties have been in possession and enjoyment of these respective plots. Thus there has been a part performance of the contract entered into by them. The more fact that Ex. II was not registered does not entitle tie Plaintiff from going back upon that contract and seeking to enforce the mortgage which was extinguished by the subsequent arrangement already referred to. That the non-registration of the deed embodying each a contract will not affect the rights of the parties under it, is made dear by Section 54 itself.

It was argued by the learned advocate for the Appellant that the contract in the present case was one entered into by Lakshmikutty Amma as guardian of her minor son and that such a contract for the purchase of immovable property in the name of the minor is not enforceable. We see no force in this contention. In the first place, the minor or the minor''s guardian is not seeking to enforce any contract for the purchase of immovable property in the name of the minor. Already there was a mortgage (transaction?) in the name of the minor and the validity of that mortgage is not questioned in the present suit. On the other hand, the Plaintiff himself has accepted the position that Ex. A mortgage is a valid transaction and his suit itself is for redeeming that mortgage. The minor''s guardian is only resisting that redemption on the basis of an adjustment which was entered into by herself on behalf of the minor with the Plaintiff. There is no doubt that such an adjustment was manifestly to the advantage of the minor. By such adjustment no sort of liability has been created on the minor. On the other hand, by the adjustment entered into by the guardian on behalf of the minor, the mortgage was extinguished and 34 cents of the property was acquired in the name of the minor free of all encumbrances. There is no point in saying that such an acquisition in the name of the minor is in any way questionable. It is perfectly within the competence of the guardian of the minor to make such acquisitions for and on behalf of the minor and to enter into the necessary agreements and adjustments for the purpose of making such unquestionable acquisitions in the name of the minor. The Plaintiff who has been a party to such an adjustment and who has in the implementation of such an adjustment derived the benefit of obtaining 32 cent of the mortgaged property- for himself after the complete extinguishment of the mortgage liability, is estopped from impeaching the validity of the transaction. In all these aspects, we are satisfied that the lower Courts were right in holding that Ex. A mortgage is not subsisting and that the Plaintiff''s suit for redemption is not maintainable. Those findings are accordingly confirmed.

In the result this second appeal fails and it is dismissed with costs.