PATHUKUTTY UMMA Vs. MUHAMMAD ALIAS KOYAKUTTY NAHA

JUDGEMENT

(1.) I think that the courts below rightly held that S.9A of Madras Act IV of 1938 (as it stands after amendment by Madras Act XXIV of 1950) applied to the mortgage in suit. And, that being the only question that arises in this second appeal by the mortgagee defendants I and 2, it follows that this appeal has to be dismissed.

(2.) Ext. B1 dated 10-4-1913, the mortgage in question, was for Rs. 1000/- and was over four items of property, with possession so far as two items were concerned and without possession so far as the remaining two items were concerned, so that the mortgage was partly possessory and partly simple. The pattern of the two items of which possession was made over was fixed at Rs. 95/-, and it was said that, out of this sum, the mortgagee should retain Rs. 75/- in lieu of interest on the mortgage money, deduct a further sum of Rs. 7-8-0 for certain expenses, and pay the balance of

(3.) I might add that there is nothing in the several provisions of S.9A to give the least indication that the section is applicable only to usufructuary mortgages pure and simple and is not applicable to all kinds of possessory mortgages which satisfy the requirements of clauses (a) and (b) of sub-s.(1). Nor is it easy to think of any reason why its application should be so restricted.