T V SRINIVASARAGHAVA AIYANGAR Vs. M NARASIMHA MUDALIAR

JUDGEMENT

(1.) THIS is a revision petition against the judgment of the Subordinate Judge of Chingleput in S. C. S. No. 56 of 1949. The suit was filed by the respondent for recovery of the rent due to him under a muchilika dated 12th June 1948 executed by the petitioner in his favour. The petitioner executed a usufructuary mortgage deed in favour of the respondent and the mortgagee executed a lease back in his favour. The suit was by the usufructuary mortgagee for recovery of the rent on the basis of the said lease. The petitioner contended in the Court below that under Section 9-A (6) (a) of the Madras Agriculturists Relief (Amendment) Act, 1948 (Act XXIII of 1948) he was only liable to pay interest but not the rent agreed to be paid under the lease deed. The learned Subordinate Judge held that the petitioner could avail himself of the said provision only at the time when he would be taking steps to scale down the mortgage debt in its entirety. In the result he gave a decree to the respondent as claimed. The above revision petition was filed against that order.

(2.) LEARNED counsel for the petitioner repeated the contention which his client unsuccessfully raised in the Court below. Section 9-A had been added to Madras Act IV of 1938 by Act XXIII of 1948. Act XXIV of 1950 substituted Section 9-A in the place of the old section. It applies to all mortgages executed at any time before the 30th September 1947, any by virtue of which the mortgagee is in possession of the property mortgaged to him or any portion thereof. Under the explanation to Section 9-A (1) (b) a mortgagee shall be deemed to be in possession of the property mortgaged to him or any portion thereof, notwithstanding that he had leased it to the mortgagor or any other person. Section 9-A (2) confers a right upon a mortgagor to re deem the whole of the property mortgaged not withstanding that a time was fixed in the mort gage deed. Sub-sections 3 and 4 provide for scaling down of the debt having regard to the term fixed and other circumstances. Under Sub-section 5, if the mortgagee had been in possession for more than thirty years, the mortgage shall be deemed to have been fully discharged subject to certain conditions laid down therein. Sub-section 6 deals with the scaling down of the mortgage debt where the mortgagee has been in possession only of a portion of the property mortgaged. Sub-section 9 (a) (i) says that except in cases falling under Subsection 6(a), where the mortgaged property or, as the case may be, the portion thereof in the possession of the mortgagee has been leased back to the mortgagor by the mortgagee, the rent due to the mortgagee under the lease (after deduction from such rent any revenue, tax or cess paid or payable by the mortgagee in respect of the property) shall be deemed to be the interest on the mortgage debt or the portion thereof attributable to the portion of the property aforesaid and the provisions of Section 8 or 9 read with Section 12, or of Section 13, as the case may be, shall apply to the entire debt. Under Subsection 9(b) the mortgagee would be entitled to recover the rents not barred in a case of a mortgage covered by Sub-section 5(a). It is therefore clear from the aforesaid provisions that " Sub-section 9(a) (i) confers a right on a mortgagor to re deem the mortgage notwithstanding any time fixed under the mortgage deed. The subsequent provisions provide for a scaling down of the decree to enable the mortgagor to redeem the mortgage The explanation to Section 9-A (1) (b) and Sub-section 9 (a) (i) introduces a fiction for the purpose of scaling down the mortgage debt. Under the explanation the mortgagee though he leased back the mortgaged property is deemed to be in possession. Under Subsection 9(a)(i) the rent payable by the mortgagor shall be deemed to be the interest on the mortgage debt. Sub-section 9(a) does not state expressly or indicate by necessary implication that a lease back is invalid. Indeed; some of the provisions show that the lease Is valid and continues to be in force. Under Sub-section 9 (b) notwithstanding the fact that the mortgage is deemed to have been discharged under Sub-section 5 (a), the mortgagee will be entitled to recover arrears of rent from the mortgagor If the claim is not otherwise barred. The scheme of the section leaves no doubt in my mind that it is intended only to apply when the mortgagor seeks to redeem the mortgage. As the lease has not been declared to be invalid, if the mortgagor does not apply for redemption there is nothing in the provisions of this section or in the Act which precludes a mortgagee from filing a suit for recovery of the rents legally due to him under the lease deed. It is no doubt true that the mortgagor can anticipate such a suit and take necessary proceedings for redemption. So long as the mortgagor does not take any such step the pre existing rights of parties are intact. In this view I agree with the Court below that the mortgagee will be entitled to a decree for the entire rent due to him under the lease deed. In the result the revision petition is dismissed with costs.