TMI Blog1965 (5) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... on the mortgage and after paying the revenue and the jenmi's purappad, he was to pay to the mortgagors one edangali of paddy every year within the 30th of Makarom. The mortgage was redeemable after the expiry of 60 years from the date of the mortgage. The 11th appellant and his deceased father, Narayana lyer, filed O.P. No. 43 of 1949, on the file of the Court of Subordinate Judge, Palghat, under s. 9-A and 19-A of the Act for scaling down the mortgage debt thereunder. To that petition, appellants 1 to 10 and other mortgagers were impleaded as respondents 2 to 14, and the mortgagee, as the first respondent. As the said first respondent- mortgagee raised the plea that the mortgage interest had been set apart by the members of his family to a charity, respondents 15 and 16, who were the seniormost male members of their respective branches of the mortgageefamily, were also impleaded as respondents to the said petition. The contesting respondents, inter alia, raised two pleas, namely, (1) the mortgage property was transferred in trust to the charity for valuable consideration and, therefore, s. 9- A(10) (ii) (b) of the Act was attracted and hence the mortgage was not liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the appellants contended that (i) there was no transfer of the mortgage property in trust for a charity but the said property continued to be the property of the joint family, though a charge was created on its income for some charitable purposes; and (ii) there was no transfer of the mortgage interest for valuable consideration. Mr. Rajagopala Sastri, learned counsel for the respondents, apart from attempting to sustain the finding of the, High Court that there was a transfer of the mortgage property for valuable consideration, contended that the transfer of the mortgage property in trust was an integral step in the process of partition and, therefore, in law and in fact it must be held that the said property was also subject of partition within the meaning of para (c) of s. 9-A (10) (ii) of the Act. At the outset it will be convenient to read the relevant provisions of s. 9-A (10) (ii) of the Act. Nothing contained in this section, except subsections (1) and (2), shall apply to any mortgage- (ii) in respect of property situated in any other area in the cases mentioned below :- (a) Where during the period after the 30th September 1937 and before the 30t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) for charitable purposes for the welfare and prosperity of our family. And it is stipulated that the undermentioned ceremonies shall be performed with the income derived from the aforesaid properties. . . . . . (specific amounts to be spent for different purposes are given) It has been stipulated that the management of the aforesaid properties endowned for purposes of charity shall be conducted by the seniormost male members of the respective branches for each year by rotation, commencing from first Kanni 1110 M.E. (17th September 1934) and the accounts shall be rendered to the satisfaction of the members of the rest of the branches at the end of the year. The recitals of this documents are clear and unambiguous. Under this document the members of the family set apart a specific amount and other properties for charitable purposes. Under the scheme of administration the seniormost male members of the different branches of the family were constituted the managers and they were directed to pay specified amounts for specific religious purposes. The members of the family were the authors of the trust. The seniormost male members of the respective branches were the trustees. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereas we have all agreed that the management in respect of the properties in the aforesaid schedule I set apart for charitable purpose and the expenses, etc. to be met with the income shall be conducted and caused to be conducted without default as set out in the aforesaid agreement entered into between us on 22nd August 1934 and that we shall also conduct ourselves in future in accordance with the terms of the said agreement, no special stipulation has been made in this partition deed with regard to the above mentioned properties endowed for charitable purpose and the incomes derived therefrom. This registered partition deed in terms affirmed the earlier creation of trust. From these documents it can be reasonably held as follows (1) On August 22, 1934, the family created a trust in respect of a sum of ₹ 36,988-9-8 for charitable purposes; (2) on September 3, 1939, the usufructuary mortgagee right of the family in Ex. A-1 was given to the charity in discharge of the obligation undertaken under Ex. B-1; and (3) the dedication of the said property was affirmed in the regular partition deed. In short, under the said documents the family transferred to the charity their i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he liability on the family with regard to a sum of money out of which certain charities have to be performed. In Exhibit B- 3 we do not find any credit entry in the name of Kolathu lyen as well as patasala account. Those liabilities must be deemed to have been discharged by item I in Exhibit B-2, namely, the mortgage amount. The result is the dis- charge of one liability by another and we are unable to see that such a state of things would not amount to a transfer. These observations also make it clear that the learned Judges clearly held that the mortgage interest in Ex. A-1 was transferred in discharge of the liability undertaken under Ex. B-1. But strong reliance was placed by the learned counsel for the appellants on the following concluding observation of the learned Judges In the present case the joint family has lost the mortgage interest and the trust has gained that interest. Therefore the transfer under Ex. B-3 must be deemed to be for valuable consideration. Relying upon this observation the learned counsel commented that the learned Judges held that a mere transfer of an interest in favour of another was in itself a transfer for valuable consideration. To accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration for the transfer of the mortgage interest not to enforce its right to recover that amount from the family. The charity gave up that right in. consideration of the mortgage interest acquired by it. We, therefore, hold that the family transferred the mortgage interest in trust to the charity for valuable consideration within the meaning of s. 9-A(10)(ii)(b) of the Act. It follows that the mortgage, Ex. A-1, was rightly held by the High Court not liable to be scaled down under the provisions of the Act. In the reply the learned counsel for the appellants sought to raise another plea, namely, that there was no valid transfer of the mortgage deed in favour of the charity inasmuch as the said transfer was not effected by a registered document. This plea was not raised at any stage of the litigation, presumably because Ex. B-3 was a registered document. We cannot, therefore, permit the appellants to raise the plea for the first time before us. In this view it is not necessary to express our opinion on the question whether para (c) of s. 9-A (10) (ii) of the Act was attracted to the mortgage in question. In the result, the appeal fails and is dismissed with costs. Appeal dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
