CHANDY PHILIPPOSE Vs. PARVATHI AMMA

JUDGEMENT

(1.) This appeal by special leave is by the plaintiff in a suit for redemption. The plaint property originally belonged to Vadasseril tarwad and was mortgaged on 3-4-1052 M.E. to one Narayanan with a term of twelve years as per Ext. P. A further charge was created on 23-3-1072 as per Ext. G, puravaipa with a term of eighteen years. On 16-5-1082 a superior mortgage Ext. A was executed by the tarwad in favour of the plaintiffs father, the rights under which later devolved on the plaintiff. The period under the superior mortgage was thirtysix years from the date of redemption of Exts. F and G. Though the period under Ext. G expired on 23-3-1090, the plaintiff sued for redemption only on 29-7-1120, that is, some thirty years after the expiry of the period. In the meanwhile the mortgagor tarwad sold the equity of redemption to one Govinda Pillai on 17-3-1104 who redeemed Exts. F and G on 25-9-1106. Govinda Pillai sold his rights to one Gopala Pillai who in turn transferred the same to the 4th defendant who is now in possession of the property. The contention of the 4th defendant is that since the plaintiff had slept over his rights for a period of thirty years and her predecessors-in-interest had redeemed the property in the bona fide belief that the plaintiff had given up his rights under Ext. A, the plaintiff should not now be permitted to redeem.

(2.) The Trial Court decreed the suit, but the decree was modified by the lower appellate court which held that in view of the belated nature of the suit, the plaintiff though entitled to redeem can do so only if the defendants do not deposit the mortgage amount. A Single Bench of this Court upheld the judgment of the lower appellate court and it is against that judgment that the plaintiff has now appealed.

(3.) The learned Single Judge in upholding the lower appellate court judgment relied on the decision in George v. Oonnoonni reported in 1949 TLR. 221. That case laid down the principle that where there is evidence to show that time was of the essence of the contract the failure of the puisne mortgagee to exercise his right to redeem the earlier mortgage within a reasonable time after that right became available to him, would result in rendering the contract relating to the period voidable at the option of the mortgagor under S.55 of the Contract Act.