KONTHALAVALLI ACHI Vs. T S AYYADARAI ODAYAR

JUDGEMENT

(1.) THIS appeal, which involves the determination of certain important questions in the construction of Sect. 9-A of the Madras Agriculturists Relief Act, 1938 (referred to as the Act) arises out of a suit for redemption for a usufructuary mortgage instituted by the first respondent. One Kandaswami, who was the original owner of the properties concerned in the suit, created thereon in favour of the appellant on 26th April 1927, a mortgage with possession for securing a loan of Rs. 6000. The document of mortgage stipulated that the mortgagor was to pay and redeem the properties within a period of three years, and that the mortgagee was to retain possession of the properties enjoying the usufruct till redemption. The mortgagee who obtained possession, leased back the properties to the mortgagor.

(2.) ON the day following the mortgage, on 27-4-1957, Kandaswami executed a second but simple mortgage over the same properties in favour of Janaki, the daughter of the appellant. Some years later, the appellant who borrowed certain monies from the 8th defendant executed a simple mortgage in favour of the latter over some of her properties, one of the items mortgaged being the first mortgage right of the appellant over the suit properties. That document is dated 19-4-1961. Thus a sub-mortgage was created over the suit property on that day.

(3.) IN the same year Janaki filed a suit on the basis of the mortgage (second mortgage in her favour) O. S. No. 273 of 1941 on the file of the District Munsif's court, Mannargudi. In due course she obtained a decree, and brought the suit properties to sale. The first respondent purchased the suit property in the court sale that ensued subject to the usufructuary mortgage dated 26-4-1927, for a sum of Rs. 3000. Thereafter, he, as the owner of the equity of redemption instituted the suit out of which this appeal arises.