THIRUMANI CHETTIAR Vs. VELUSWAMI NAICKER AND OTHERS

JUDGEMENT

(1.) In both the appeals, the mortgagee is the appellant who sued to enforce the personal covenant in the mortgage on the assumption that such a covenant existed in the deed. The Courts below held that the deed did not admit of any such construction and were agreed in dismissing the suit. The second appeal arises out of that suit. The other appeal is from a suit instituted by the respondent mortgagor for redemption, which was decreed. The mortgage amount has been deposited and the mortgagor has been put in possession. There is, therefore, nothing further to be done and no point has been urged, in fact there is none, in the appeal. No doubt, the decree in favour of the mortgagor granted him mesne profits, but in the circumstances the propriety of the decree cannot be assailed. The appeal is, therefore, dismissed. In view of what I have stated above, the second appeal has more or less become academic except in regard to costs. What is contended by the appellant is that his suit being earlier to the redemption suit and as there was, according to him, a personal covenant to pay in the mortgage deed, he was justified in instituting a suit, and, therefore, he is entitled to costs.

(2.) The deed is clear that it created an usufructuary mortgage over the property. Whether it contains a personal covenant to pay, and therefore the mortgage is an anomolous one, depends on a construction of the material words used therein, which are :

(3.) Laterally translated, this means that after expiry of the time of redemption, 30th Ani 1124 Andu, on receipt of the amount the land and this document will be handed to the mortgagor by the mortgagee, but if by that time there is default in payment, the money may be paid on 30th Ani of any Andu and then the land and the document shall be handed by the mortgagee to the mortgagor. The amount was not paid by the first date fixed for redemption. What is, therefore, the effect of the second clause in the language extracted has to be ascertained. If the nature and elements of an usufructuary mortgage, by which is meant a mortgage with possession, are borne in mind, a clause like that may not find a place in such a mortgage. But, as a matter of fact, possessory mortgages in this part of the country involving agricultural lands do frequently contain such a clause, having as its object that the mortgages in possession should not be disturbed from it in the middle of an agricultural season. That is why the stipulation is made that redemption shall be on a particular date of any year. But the question is if, inasmuch as the clause under construction speaks of repayment on the terms mentioned, it amounts to a covenant to pay, apart from the obligation arising out of the usufructuary mortgage itself. Looking at the wording of the clause, it seems to me that it proceeds upon the assumption of an obligation to pay. But the intention of the clause itself appears to be not related to repayment, but the time at which it should be made to suit exigencies of agricultural operations on the land "" leaves an option to the mortgagor to choose the year of payment and does not, to my mind, raise a personal covenant to pay, But the restriction upon the option with reference to the date and month is conceived for the benefit of the mortgagee. While securing that benefit, the language had necessarily to refer to the option and the restriction thereto. I am inclined to think, as I read the language extracted in the context of the entire document, that it does not justify reading into it a personal covenant to pay.