GOPAL CHETTIAR Vs. ARUMUGHA NAICKER

JUDGEMENT

(1.) The appellant sued to recover a sum of Rs. 300 as the principal advanced and due on a mortgage executed on July 25, 1947 in his favour by the respondent and another sum of Rs. 100 alleged to be arrears of rent for the two years prior to the suit. The appellant's case was that it was an anomalous mortgage with possession and a personal covenant to repay after three years and that he had leased out the property to the respondent himself. The respondent admitted the lease except for the year 1948 but, according to him, it was a usufructuary mortgage under which the mortgagee was in possession for at least one year and the debt was liable to be scaled down under the provisions of Section 9-A of the Madras Agriculturists Relief Act, 1938. On that basis, he admitted that a sum of Rs. 290 would be due as principal and that a decree might be granted for the same. As regards arrears of rent, he denied liability on the ground that he got nothing from the lands during the relevant period.

(2.) On the view that the mortgage was an anomalous one, the trial Court held that Section 9-A was not applicable but scaled down the debt under Section 13 of the Act, treating rent as interest. On this basis, it granted a preliminary derree for a sum of Rs. 68. The lower appellate Court without much of a discussion, agreed with the trial Court and dismissed the plaintiff's appeal. Hence this Second Appeal by him.

(3.) On the facts mentioned whether the mortgage is anomalous or usufructuary, in either case, Section 9-A cannot apply. That section has application only to a usufructuary mortgage in a suit for redemption. This is not such a suit. Though the Courts below declined to apply the section, they apparently did so upon the only ground that the mortgage was an anomalous one. But as I said, even if it was a usufructuary mortgage, Section 9-A would still be inapplicable to the present suit which is not for redemption.