M V PREMKUMAR Vs. C SREERAMA SETTY

JUDGEMENT

(1.) appellants herein were plaintiffs in the original suit for a decree for redemption of the suit properties which are five in number. It is stated that these properties are in a prominent locality at Mysore city in sayyaji Rao road, being contiguous forming different parts of one building. They were subject matter of mortgage from time to time by the plaintiffs or their mother right from 1921. The mortgagees were virupakshaiah, tayub sait, abdul karim, mohammed ghouse and boraiah till the year 1934. For the purpose of this appeal the court is now concerned with the mortgage of the year 1934, dated 17-1-1934 for Rs. 20,000/- with terms and conditions adumbrated therein. There was however a subsequent mortgage in favour of cheluvaraya setty, the deceased father of respondents. When the mortgage in favour of the prior mortgagees was subsisting the mortgagees committed default in payment of municipal taxes and the Mysore municipality filed O.S. No. 716/1932-33 for recovery of Rs. 145/- being taxes for the period from 1929-30 to 1931-32 and obtained a decree on 29-5-1933. This was in respect of door No. 223. Another suit O.S. No. 717/1932-33 was filed for recovery of Rs. 116-04 annas being the arrears of tax for the years 1929-30 to 1931-32 in respect of door No. 222. A decree came to be passed the same day i.e., on 29-5-1933. When these decrees were subsisting and even before execution was taken up the present mortgage in question came into existence. Rest of the facts are stated in considerable detail by the trial court and in some detail by the first appellate court with regard to the prior mortgages and it is unnecessary to refer to them in this appeal. However, the terms of the mortgage deed ex.p-1 now under consideration arc necessary to be scrutinised.

(2.) the deed makes reference to the mortgages in favour of virupakshaiah and tej karim sait and also O.S. No. 6/1929-30 in the court of district judge with regard to alienation of the suit properties by the mother of the mortgagors during their minority. The mortgage in favour of karim sait was made over to virupakshaiah and even in that behalf there was a litigation between them. The deed makes reference to the contention of virupakshaiah in that suit. The alienation by the mother of the plaintiff referred to in ex.p-1 appears to be the mortgage in favour of virupakshaiah and karim sait.

(3.) the next important term is that the prior mortgagees i.e., virupakshaiah and kareem sait had failed to pay the municipal taxes and for that reason the municipality was filing suits for recovery of taxes. The first floor was in possession of boraiah by virtue of a mortgage in his favour for Rs. 3,000/-. As this boraiah was not effecting repairs, the mortgagors were likely to suffer loss and therefore they undertook to deposit the mortgage money due to him and obtain actual possession after redeeming the mortgage and the mortgagee had agreed to help them in this behalf, perhaps by paying the money required to deposit. The purpose of the mortgage could best be brought on record by re-producing the very recital in this behalf which states: <IMG>JUDGEMENT_290_KANTLJ3_1991Image1.jpg</IMG> they undertook to repay Rs. 3,000/- to boraiah and get an endorsement over the mortgage deed from him. Having received the remaining amount after depositing the money due to virupakshaiah and kareem sait in court they undertook to pass a receipt in that behalf. The mortgage money thus according to them was completely paid and the terms also related to repairs to be effected cither minor or major by the mortgagee or the mortgagors, as the case may be. Thus under this mortgage the municipal door Nos. 222, 223, 224, 232 and 592 were mortgaged. Rs. 1,000/- were received in cash by the mortgagors on the same day and they undertook to receive the remaining Rs. 2,000/- after possession of the ground floor was obtained. It also appears that at the time of mortgage what exactly was the amount to be paid to the mortgagors was not determined after deducting what all the amounts were to be paid towards the discharge of the prior mortgagees, for that reason they further undertook to receive the remaining money after the actual possession of the remaining properties was obtained.