John vs Karthiayani

Subramania Iyer, J.—The 3rd defendant's prayer for relief under the Travancore Cochin Act, 8 of 1950 which was allowed by the Munsiff, having been disallowed by the District Judge, he has come to this Court in Second Appeal.

The respondent-decree-holder is a superior lessee from the owner. He leased out the property in question to defendants 1 and 2. They gave a possessory mortgage of the leasehold to defendant 3. Relief was sought in the plaint for recovery of arrears and future rent until recovery of possession of the property which was also asked for against all the defendants. The decree shows that relief was granted only against defendant 3 and none was granted against defendants 1 and 2. The decree must therefore be construed as being passed upon the establishment of the rural relation of landlord and tenant, between the decree-holder and, defendant 3, though the transaction between defendants 1 and 2 & defendant 3 is seen in the decree itself to be termed as "possessory mortgage".

The decree-holder contested the claim for immunity from eviction made by defendant 3 on two grounds. Firstly that the transaction under which defendant 3 claims is not in respect of a "holding" within the meaning of the Act and secondly that he had defaulted m payment of rent. The Munsiff found in favour of the appellant on both these points but the learned District Judge did not record a finding on the question as to the nature of The holding but denied relief to defendant 3 on the ground that according to the latest ruling of the High Court, arrears should have been paid "before the Court orders notice of delivery".

What happened in this case was that before delivery was ordered the Munsiff issued notice to show cause why delivery should not be ordered and upon such notice defendant 3 deposited the rent that was in arrears in Court. The deposit was full but according to the Judge it was beyond time as in his view the deposit should have been made even before the Court ordered notice to issue to defendant 3 to show cause why delivery of the property should not be ordered. The latest decision referred by the Judge is reported in - "Sanku Krishnan v. Hariprabhu Govinda Prabhu", AIR 1952 Trav-Co 333 (FB) (A). That decision does not lay down what the District Judge thought it did. What is laid down therein is only that the deposit should be made before delivery is ordered and not that it should be made before notice is ordered and issued to show cause why delivery should not be ordered. It is on account of this misconception under which the learned Judge laboured regarding the High Court's decision that he passed such an order.

Learned counsel for the respondent, Mr. Kochukrishna Pillai does not contend that the Judge was not in error in understanding the said Full Bench decision. He however, contended that he is entitled to succeed on the ground that the holding in question is not within the meaning of the Act 8 of 1950. The Full Bench decision above referred to is authority for the position that when there is a mortgage and the mortgagee grants a lease, then that will be a single transaction within the meaning of the Act. The converse is the case here as what transpired in this case was a lease first and what supervened was a mortgage by the lessee. It is contended that this aspect of the case that when the lessee gives a possessory mortgage whether there will be a single transaction has not been considered by the Courts below. There might not have been any occasion for the Courts below to consider that question.

As already stated the plaintiff claimed relief against defendant 3 though the transaction under which he claimed was only that of a mortgage and the Court granted relief against him. The claim made and the relief granted against defendant 3 can be justified only on the basis of the existence of the jural relation of landlord and tenant between the plaintiff and defendant 3. The plaintiff having put forward a case of such a jural relation & having had the advantage of a decree by the Court upholding that position of his, I consider it beyond his competence now to go behind that decision and contend that defendant 3 does, nor come under term "tenant" and that he is claiming independently of the tenancy that there was in respect of this property. So far as this proceeding is concerned the plaintiff must be concluded by the stand up took and the decree obtained by him against defendant 3 as a tenant and if defendant 3 is a tenant, he is unquestionably entitled to the protection afforded by Act 8 of 1950. In this view it is unnecessary to consider whether a mortgage by a lessee would or would not constitute a single transaction so as to attract the application of the provisions contained in Act 8 of 1950.

In my judgment, therefore, the decree passed by the District Judge disallowing relief to defendant 3 cannot be supported which is hereby set aside and the order passed by the Munsiff is restored. The result is this second appeal should be allowed with costs throughout.