VENKITASUBRAMANIA AYYAR Vs. VADASSERI TARWAD KARNAVAN AND MANAGER ITFI CHATHAR VALIYA MANNADIAR AND ORS.

JUDGEMENT

(1.) THE first defendant in O.S. No. 15 of 1947 on the file of the Sub -Court, Palghat, has appealed against the preliminary decree whereby redemption was ordered of a mortgage for Rs. 35,000 without a direction for payment of the major portion of the amount claimed by him in the suit, as a condition precedent to redemption. There is very little dispute with regard to the facts of the case and the point for determination is mainly one of law.

(2.) A usufructuary mortgage, Exhibit A -1, dated 14th April, 1932, is by plaintiffs 1 and 2 in favour of the father of the first defendant who then represented a joint Hindu family and it is an admitted fact now that the first defendant is the representative of the mortgagee family. Defendants 2 to 5 are the tenants claiming fixity of tenure and we are not concerned with their claims in the present appeal. The third plaintiff is the executor under the will of one Raman Nair. Plaintiffs 1 and 2 executed a puisne usufructuary mortgage on the 4th April, 1946, in favour of this Raman Nair and his wife authorising them to redeem and recover possession of the properties mortgaged under Exhibit A -1. The mortgage under Exhibit A -1 was in respect of three items, a residential building in the town of Palghat, item 2 consisting extensive paddy -fields expected to fetch an annual pattom of 6,300 paras of paddy and item 3 is a bungalow at Ootacamund. The terms of the mortgage were that the mortgagee should hold the properties, cultivate or cause to be cultivated or lease out the same for pattom, pay Government revenue and municipal taxes from the income and should appropriate the remaining usufruct towards interest due on the mortgage amount. It was further stated that the sum of Rs. 35.000 if paid in any year during the Kalappad (15th January to 12th April) should be received by the mortgagee and the properties released. There was also a covenant that the mortgagee was at liberty to recover the mortgage amount by sale of the rights belonging to the mortgagors. There was already a mortgage on these items to the Maharani Gaekwar of Baroda and the balance due on the date of Exhibit A -1 was Rs. 20,000. Therefore Exhibit A -1 was only a second mortgage. On the same date under Exhibit B -1 the mortgagors took back the mortgaged properties on lease agreeing to pay rent of Rs. 4,200 which represented interest on the mortgage amount at the rate of 12 per cent per annum with a stipulation that the arrears of rent could be recovered by the sale of the equity of redemption of the mortgaged properties. In other words there was a charge for arrears of rent on the mortgagors' rights. The mortgagors -lessees agreed to surrender possession of the properties before 12th April, 1933, without raising any disputes whatever. In addition to this, the document stated that the mortgagors were agreeable to the mortgagee recovering the usufructuary mortgage amount of Rs. 35,000 and the arrears of rent due under the lease -deed together or any one of them alone in whatever manner the mortgagee may deem fit by causing the mortgaged properties to be sold by other means, by instituting legal proceedings or otherwise. It is not necessary to refer to the other clauses in the deed. At the very outset it may be remarked that Exhibit B -1 is in explicit terms and is in essence a lease for one year without any provision for the lessees' holding over at all and the charge created on the equity of redemption was only for rent for one particular year.

(3.) UNDER Exhibit B -2, dated 25th January, 1935, the mortgagors surrendered items 1 and 2 to the mortgagee. The rent of item 1 was fixed at Rs. 30 per mensem as it was occupied by a tenant. In regard to item 2 being lands held by the cultivating tenants it was stipulated that the annual rent of 6,300 paras of paddy, should be commuted at the rate of Rs. 30 per cart -load of paddy, and the amount arrived at was Rs. 2,700. This commutation was irrespective of the decrease or increase in the value of paddy. By this method towards Rs. 4,200 due to the mortgagee a sum of Rs. 3,060 was satisfied and the document stated that the balance amount to make up Rs. 4,200 would be paid every year. The document is said to contain a further stipulation that arrears of rent due till then as well as the amount necessary to make Rs. 4,200 after crediting Rs. 3,060 would also be made a charge on the equity of redemption. Accordingly possession of items 1 and 2 were given over to the mortgagee -lessor. In 1939 an assignee of the mortgage right in favour of the Maharani of Baroda brought a suit for recovery of the balance due under the mortgage and got a decree. When the properties were about to be sold the first defendant's father paid Rs. 3,200 and got the sale adjourned but with no purpose. Finally items 1 and 3 were sold and even then the decree was not satisfied. Faced with this situation the first defendant got an assignment of that mortgage decree for Rs. 6,500 under Exhibit B -4, dated 18th March, 1941. As stated already on 4th April, 1946, a possessory mortgage was executed by plaintiffs 1 and 2 in favour of one Raman Nair and his wife with authority to redeem Exhibit A -1 and thereafter under O.P. No. 20 of 1946, Sub -Court, Palghat, Rs. 35,000 was deposited under Section 83 of the Transfer of Property Act and notices were taken out to the first defendant and since the mortgagees refused to accept the amount and surrender the mortgaged properties, that petition was dismissed. Thereafter the present suit for redemption was filed with a prayer for redemption of the mortgage and for directing delivery of possession of item 2 free from mortgage to the third plaintiff on payment of Rs. 35,000. There was a further prayer for payment of mesne profits on that item from 1945 -46 to the date of recovery of possession of the properties at the rate of 6,300 paras of paddy per annum and interest thereon.