CHOTHY Vs. YESUDEVAN NADAR

JUDGEMENT

(1.) The only question for decision in this second appeal is whether Ext. A is a redeemable mortgage or an irredeemable demise. Plaintiffs brought the suit on the allegation that Ext. A is a mortgage, and prayed for redemption of that mortgage and recovery of possession of the property comprised therein. Defendants contended that although the document was styled as an otti it was an irredeemable demise and that at any rate the plaintiffs were not entitled to ask for redemption in view of the express provision in Ext. A that it would only be open to the mortgagee to ask for the return of the mortgage amount and that the mortgagors would not seek redemption. The courts below concurrently found against the defendants' contention and held Ext. A to be a redeemable mortgage and decreed the plaintiffs' suit. Hence this second appeal.

(2.) The document is styled a mortgage; and it is clearly seen from the provisions therein that the transaction was a loan given by the mortgagee to the mortgagors charged on the property comprised in Ext. A. A right was also expressly reserved to the mortgagee to ask for the return of the amount. In the circumstances the clause denying the right of the mortgagors to ask for redemption can only be viewed as a clog on the equity of redemption. The case is governed by a Full Bench decision reported in Padmanabha Pillai v. Umamaheswara Iyer, 1948 TLR 556. It was held in that case: