VENKAPPA BHATTA Vs. GANGADHARA BHATTA

JUDGEMENT

(1.) By Ext. B-39 dated 8-1-1935, the two plaintiffs, their since deceased father Subraya Bhatta,Subraya Bhattas brother ShankernarayanaBhatta, and Shankernarayana Bhattas sons and grandson, members of a then undivided Hindu joint family, usufructuarily mortgaged the properties described in schedule A1 and A2 to the plaint to the 1st defendant as the manager of his joint family for a sum of Rs. 11,000. Under the terms of the document, the mortgage was redeemable in the Vishu Sankramana of the year 1965 on payment of the sum of Rs. 11,000 and the value of improvements effected by the mortgagee. Three years later, under Ext. B-l dated 9-3-1938, one branch of the mortgagors family, namely, Shankernarayana Bhattas Branch sold its half share in the equity of redemption to the 1st defendant, and out of the consideration of Rs., 6,700 a sum of Rs. 5,500 went in discharge of half the mortgage money due under Ext. B-39. By the partition deed, Ext. A-5 dated 25-2-1947 in the 1st defendants family, the entire rights of the family in the properties comprised in Ext. B-39 were allotted to the 1st defendant and his three sons, defendants 2 to 4, so that they became the full owners of an undivided half share in the property and held the remaining half share on usufructuary mortgage under Ext. B-39 for the reduced sum of Rs. 5500. In 1948 disputes arose between defendants 1 to 4 on the one side and the plaintiffs and their father (whom I shall compendiously call merely the plaintiffs) on the other, and, after the exchange of notices under Exts. A2 and A-3 dated 15 -2-1948 and 7-3-1948 respectively, the disputes were settled with the aid of mediators; and the partition deed, Ext. B-2, and the lease deed, Ext. B-3, both of the date of 22-6-1948, were drawn up accordingly. Under the partition deed, Ext. B2, the property was divided by metes and bounds into two equal shares. The first share comprising the properties described in schedule A2 to the plaint was allotted to defendants 1 to 4 and they became the full owners thereof. The second share, described in schedule Al to the plaint, was allotted to the plaintiffs and they were to hold it subject to the usufructuary mortgage, Ext. B-39, for the rest of its term, namely, upto Vishu Sankramana of 1965, and were to redeem it on the due date on payment of the mortgage amount of Rs, 5500. Meanwhile, for the rest of the term of: the mortgage, they were to enjoy the property (viz., the property in schedule Al to the plaint and not in schedule A2 as wrongly stated in the plaint and in the judgment of the lower court) under the lease, Ext. B-3, entered into on the same day between themselves on the one hand and the 1st defendant on the other. Accordingly, the plaintiffs were in possession of the property in schedule Al and defendants 1 to 4 of the property in schedule A2. Then in March 1949, the present plaintiffs (their father had died meanwhile) filed O.P. 13/1949 under S.83 of the) Transfer of Property Act and, depositing a sum of Rs. 5500 into court, sought premature redemption of the mortgage over their property, viz., the property in schedule Al, taking advantage of the new S.9 A introduced into Madras Act IV of 1938 by Madras Act XXIII of 1948. Defendants 1 to 4 having refused redemption, the plaintiffs filed their present suit praying for a decree, directing an account to be taken of the amount due under the mortgage, dated 8-1-1935 (Ext. B-39) as broken and split up by the purchase of the half share of the mortgaged properties by the mortgagee and as modified by the partition deed, dated 22-6-1948 (Ext. B-2), and declaring that a sum of Rs. 5500 alone is liable to be paid for redemption of the outstanding part of the plaint mortgage and further declaring that on payment of the said sum of Rs. 5500 which has already been tendered into court that the mortgage stands redeemed and directing defendants I to 4 to execute the necessary deed of reconveyance at the cost of the plaintiffs.

(2.) Defendants 1 to 4 resisted the suit on three grounds: (i) that the effect of Ext. B-2 was to create a new mortgage for Rs. 5500 upon the property in schedule Al to the plaint, that the old mortgage under Ext. B-39 thereby ceased to exist, that it was this new mortgage that had to be redeemed, and that the date of this new mortgage being the 22nd June 1948, S.9-A of Act IV of 1938 (introduced by Act XXIII of 1948 & amended by Act XXIV of 1950) which applies only to mortgages executed before the 30th September 1947 could not avail the plaintiffs to claim redemption of the mortgage before the expiry of its term, (ii) That while the property was in their possession, viz., between the dates of Ext. B-39 and Ext. B-3, they had effected improvements worth over Rs. 8000 and, in any event, redemption could be decreed only on payment of this sum in addition to the principal sum of Rs. 5500 and, (iii) that no rent whatsoever had been paid under the lease, Ext. B-3, and that the entire arrears of rent with interest thereon had to be paid before redemption.

(3.) Defendants 5, 6 and 7 were impleaded as persons who had some interest in the property. Of these the 6th defendant alone appeared to contest the suit. He claimed some right for himself and the 7th defendant as against defendants 1 to 4 by virtue of what he described as a sub-mortgage over the entire property covered by Ext. B-39 and asserted that the partition deed, Ext, B-2, was not binding on him and the 7th defendant. For the rest he supported defendants 1 to 4. No issue was however framed with regard to this special contention of the 6th defendant; nothing was said about it either at the trial or in the appeal (where the 6th defendant has not chosen to appear); and defendants 5 to 7 may well be ignored.