NARAYANAN Vs. KOCHUPENNU

JUDGEMENT

(1.) The appeal is from a decree granting the redemption of an otti dated 8-3-1112. The plaintiff respondent executed the said otti in favour of defendants 2, 8 and 9. The deed provided that the mortgagees shall enjoy the property as mortgagees for a period of twenty seven months and that if the mortgagor did not pay up the mortgage money by the expiration of that period the deed shall be treated as one of sale. No redemption was effected within the specified period and on 5-6-1118, the mortgagees, treating themselves, as absolute owners, sold their right, title and interest to defendant 1, the appellant before this Court. Prior to this sale the mortgagees had got the Revenue authorities to transfer the land registry to their names. The otti deed contained a provision to that effect as well. The suit giving rise this appeal for cancellation of the sale in favour of defendant 1 and for redemption of the otti on payment of the mortgage money and the value of improvements was brought by mortgagor on 11-2-1119. Defendants 1 and 9 resisted the suit on the ground that by virtue of the provisions of the otti deed the mortgagor had forfeited her right of redemption and that the suit was hence not maintainable. The learned District Munsiff of Pathanamthitta before whom the suit was tried repelled the contention and allowed redemption to take place on payment of the mortgage money and a further sum of Rs. 306 odd towards the value of improvements. Defendant 1 has brought this appeal against the learned Munsiff's judgment and decree.

(2.) Pending the suit in the lower court defendants 2 to 9 were removed from the array of parties. The plaintiff mortgagor is therefore the sole respondent to this appeal.

(3.) Mr. N. K. Narayana Pillai, the learned counsel for the appellant contended before us that the transaction was in truth and substance a sale. It was also argued that even otherwise though normally a provision in a mortgage deed that it shall in certain eventualities work itself out into a sale would be void, in the circumstances the plaint otti came to be executed the said term would not come within the mischief of the rule relating to clogging or fettering the right of redemption. The circumstances relied upon were the following: