CHELLAPPAN PILLAI Vs. PARAMESWARAN PILLAI

JUDGEMENT

(1.) The suit out of which the appeal arises was instituted by the respondent as purchaser of the equity of redemption. He had redeemed the mortgage Ext. A2 of 1073 on the property and by the plaint he asked for redemption of the sub mortgage Ext. A3 of 1077 created by the mortgagee and now vesting in the first defendant appellant. The appellant denied the respondent's title and asserted that he was the full owner, repudiating the sub-mortgage. He raised an alternative defence that he was a deemed tenant within S.4A(1)(a) of the Land Reforms Act and was therefore entitled to protection from eviction. The Trial Court overruled these defences and passed a preliminary decree for redemption in favour of the respondent On appeal the appellant repeated and that claim alone is relevant now that he was a deemed tenant. That claim failed and the appellate judge confirmed the decision of the Trial Court.

(2.) A sub mortgage is created by partially transferring the mortgage and the sub mortgagee is thus a derivative mortgagee, owning part of the mortgage. He is to a limited extent an assignee of the mortgage and although the assignment has been made by the mortgagee and can be redeemed by him, he is liable to redemption by the mortgagor who created the head mortgage as he is a partial or limited assignee of that mortgage. They are bound by privity of estate, each having correlated rights of the mortgagor and mortgagee in the same property, the rights being modified by the existence of the head mortgage so long as it lasts. In the present case the head mortgage had been redeemed and the suit is by the owner of the equity of redemption to redeem the outstanding sub mortgage. The appellant is a mortgagee even in relation to the respondent, albeit it is by virtue of a partial or limited transfer of the original mortgage. The other conditions of the sub-section being satisfied the case must therefore fall within its terms, unless it is excluded by any other provision or principle of law.

(3.) The lower appellate court rejected the appellant's claim in the view that while S.4A(1)(a) would have applied if the suit was by the mortgagee to redeem the sub mortgage it does not or cannot apply as the suit is by the mortgagor to redeem the sub mortgage, which alone is outstanding. This view cannot be accepted as correct for it overlooks the position or status of the sub mortgagee vis a vis the mortgagor, as explained above.