RAJAMMAL Vs. G. VISWANATHA AYYAR AND OTHERS

JUDGEMENT

(1.) The first of the two questions that fall for determination in this second appeal concerns the interpretation of S. 4(h) of the Madras Agriculturists Relief Act, 1938 (hereinafter referred to as the Act). One Kasturi Aiyar who had an othi right over the suit property created a sub -mortgage with possession over the property on 23rd May, 1883, in favour of one Dharmalingam Pillai to secure a loan of Rs. 175. The mortgage was redeemable after three years. The sub -mortgagor could not however pay up the money during his lifetime. His son who succeeded him received a further sum of Rs. 25 from Dharmalingam and on 10th August 1891 executed Ex. A -2, a fresh othi (sub -mortgage) for a period of 100 years. The sub -mortgagee's rights came to be subsequently assigned to one Govindammal, the predecessor -in title of the appellant. That lady was in enjoyment of the mortgage properties on 1st October, 1937. It has now been found, and that finding has not been challenged before us, that the property owned by Govindammal on that date Inclusive of her rights under Ex. A -2 did not exceed the sum of Rs. 6000.

(2.) The respondents who are the descendants of the sub -mortgagor, claiming to be agriculturists Instituted the suit out of which this second appeal arises for redemption of the sub -mortgage. It will be noticed that if the terms of the mortgage document were to prevail the suit would be premature at redemption can be claimed only in the year 1991 A. D. The respondents tried to get over that difficulty on two grounds: (1) that by virtue of S. 9 -A(2) of the Act they would be entitled to redeem even before the period fixed in the document bad expired, and (2) that the period of 100 years fixed in the document would be a clog on equity of redemption and therefore would not avail against the mortgagors while redeeming the property at any time within the period of limitation, and that as in the instant care there had been an acknowledgment by the mortgagee of the mortgagor's right, the claim to redemption would be well founded. The trial Court dismissed the suit finding both the points against the respondents. On appeal, the learned Subordinate Judge, Tanjore, held that the respondents would, by virtue of S. 9 -A of the Act, be entitled to redeem even before the time prescribed under the document had arrived although the debt was one which was owned on 1st October, 1937, by a woman who had less than Rs. 6000 as her property; in his view S. 4(h) would not have the effect of disentitling the agriculturist mortgagor of his right to redeem but would only prevent the scaling down of the debt. On the other question, namely, that relating to the clog on the equity of redemption he negatived the respondents' case by holding that the period fixed for redemption disclosed on the face of it an unfair bargain, yet as there was no plea or issue in the case as to the unconscionable nature of the transaction evidenced by the mortgage, the term as to redemption could not be held to be a clog, On the basis of his finding on the former question the learned Subordinate Judge passed a decree for redemption on payment of a sum of Rs. 200.

(3.) The substantial contention that is urged on behalf of the appellant before us is that the suit for redemption is premature, because S. 9 -A which permits an agriculturist debtor to claim redemption even before the period stipulated under the document had arrived, will not be applicable to this case, as Govindammal, the creditor at the relevant period of time, did not own property in excess of Rs. 6000. For a due consideration of that question it is necessary to set out the relevant provisions of the Act. S. 4(h)reads: