SOOSA PILLAI Vs. AZHAKAIANAMBIA PILLAI

JUDGEMENT

(1.) The plaintiff is the special appellant. He purchased the equity of redemption of the suit property and brought the suit giving rise to this appeal to redeem an outstanding otti transaction evidenced by Ext. I dated 8.6.1108. The otti right also passed hands and the sole defendant in the suit is the purchaser of that right under Ext. II dated 21.3.1109. Ext. I is for a definite period of 3 years and it further provides that if redemption is not effected when the period expires the mortgagee may treat the transaction as a sale and enjoy the property as full owner effecting mutation of names and paying the tax. The period specified expired on 8.11.1111. The plaintiff's purchase of the equity of redemption was only in 1119. (Ext. A dated 9.8.1119). The suit was filed on 26.9.1119. The defendant contended that on account of the failure to redeem the otti within the specified period Ext.I had matured into a sale and that the right of redemption was lost. The Trial Court which in this case was the Court of the Additional District Munsiff of Nagercoil negatived the defendant's contention and passed a decree for redemption with mesne profits at the rate of 4 kottas of paddy per crop from the date of deposit of the mortgage money till date of delivery of 3 years from the date of the decree which ever happens earlier. This decision was however reversed on appeal by the defendant by the learned Second Judge, Nagercoil and the suit dismissed with costs in both the courts. The plaintiff has therefore preferred this special appeal.

(2.) The defendant remained ex parte in this court. The sole ground on which the Munsiff's decision is reversed by the learned appellant Judge is that the provision in Ext.I that in the event of redemption not taking place at the expiry of the period specified the transaction shall work itself out into an outright sale was legal and valid and that it had taken effect. In the opinion of the learned Judge the sale had become absolute and the right of redemption lost. Whatever uncertainty there was in the past in Travancore as to the law applicable to such provisions in a mortgage deed that has been set at rest by a recent Full Bench decision reported in Padmanabha Pillay v. Umamaheswara Iyer (1948 TLR 556) and according to that decision a provision like the one we have in the case before us is invalid and unenforceable. Such provisions in a mortgage deed would now as in other jurisdictions be looked upon as a clog on redemption in Travancore as well. In this view of the matter the appeal has to be allowed.

(3.) The appellant's learned Advocate wanted to argue that the rate of mesne profits fixed by the Munsiff was rather low. We heard the evidence on the matter read out in Court and we are not inclined to think that there is any merit in the contention. It is hence overruled.