VARKEY Vs. KARTHIYANI AMMA

JUDGEMENT

(1.) This appeal arises from proceedings under the Kerala Agriculturists Debt Relief Act, XXXI of 1958. The respondent applied for redemption of a mortgage, Ext. D-1, as provided by S.11 of the Act. The application was dismissed by the Trial Court and the lower appellate court on the ground that the respondent should have applied for redemption of a subsequent mortgage, Ext. D-3 also and should have deposited half the mortgage amount under Exts. D-l and D-3. In second appeal our learned brother, Madhavan Nair, J., held that the respondent was entitled to redeem Ext. D-l alone and that the application under S.11 should be allowed. This appeal by special leave is preferred by the mortgagee from this decision.

(2.) The facts necessary for the decision of the appeal may be stated: On 28th January 1952 an usufructuary mortgage deed, Ext. D-l, was executed by the respondent for a sum of Rs. 2,000 and a term of two years was fixed; and under this deed the mortgagee was to appropriate the income towards the interest on the mortgage amount. The appellant before us obtained an assignment of the mortgage on 8th September 1953 and on the same day the mortgagor executed a second mortgage, Ext. D-3, called a puravaipa deed for a sum of Rs. 1,000 in favour of the assignee. Ext. D-3 was a simple mortgage and the mortgage money was charged on the equity of redemption of the property mortgaged under Ext. D-l. The mortgagor undertook to pay the sum of Rs. 1,000 advanced under Ext D-3 along with the mortgage money under Ext. D-l after two years. It was further provided that he would pay interest at the rate of 1 per cent per month and in case of default, interest on the arrears also would be paid at the same rate. There was a further clause that in case interest was not paid at the end ,of each month the mortgagee could sue for recovery of the mortgage money and interest before the expiry of the term. The mortgagor applied under S.11 of the Act for redemption of Ext. D-l and made an initial deposit of Rs. 1,000 which constitutes one half of the mortgage money. The appellant contended that the respondent was not entitled to redeem Ext. D-l alone, that he should apply for redemption of Ext. D-3 also and that one half of the amount under Ext. D-3 was also to be deposited. This contention which was upheld by the court of first instance and the lower appellate court was found against in second appeal, and this is the only question arising for decision in this appeal.

(3.) Act XXXI of 1958 (Kerala) contains different provisions for redemption of usufructuary mortgages and debts other than those covered by usufructuary mortgages. S.4 deals with the discharge of debts falling within the latter category and the debtor gets the benefit of payment in 17 half-yearly instalments. S.11 which relates to discharge of usufructuary mortgage debts provides for payment of 50 per cent of the debt initially and the balance in 10 half-yearly instalments. The respondents application under S.11 is liable to be dismissed if the two mortgages, Exts D-l and D-3, are to be consolidated for the purpose of redemption, as half the mortgage money has not been deposited.