THAYAMMAL Vs. ADHIMOOLAM SERVAI AND ANR.

JUDGEMENT

(1.) THIS appear arises out of a suit for redemption of a usufructuary mortgage. The suit property belonged to one Periyasami Servai. He had four sons. The defendants are two of his sons. The 2nd defendant married the plaintiff as his second wife. Between the father and the four sons there was a partition evidenced by Exhibit A -1, dated 29th April, 1929. Even prior to the partition, the property had been mortgaged with possession to the 1st defendant for Rs. 1200 under Exhibit A -2, dated 19th May, 1927. In the partition the property fell to the share of the 2nd defendant. At the time of the marriage with the plaintiff the 2nd defendant executed a settlement deed, Exhibit A -3, dated 23rd June, 1932, which was, however, subject to the other in favour of the 1st defendant. On 22nd March, 1943, the 2nd defendant purported to execute a release, Exhibit B -1, in respect of the suit property in favour of his father. The plaintiff's case is that she is entitled by virtue of the settlement deed in her favour to redeem the mortgage and that the subsequent release deed executed by her husband would not affect her lights in the property or her right to redeem the suit mortgage. Both the Courts on a construction of the settlement deed held that she had no vested right in the property but had only a contingent interest and therefore was not entitled to redeem.

(2.) THE two points that arise therefore for determination are: whether the lower Courts have properly construed the settlement deed, Exhibit A -3, and whether the plaintiff is entitled to redeem. I am satisfied that on the construction of the recitals in the document the view taken by the lower Courts that the plaintiff had only a contingent interest is correct. Her interest in the property would arise only if the uncertain event of the disagreement between the plaintiff and the second defendant should arise at any time and if they lived amicably there is no scope for the settlement becoming effective and any interest in the property would not vest in her, the right to the income of the property being dependent upon the happening of an uncertain event, the uncertain event in this case being any disagreement that may arise between the parties. It is not suggested that such a contingency had arisen and there are no allegations in the plaint that at any time the plaintiff had fallen out with her husband and has been obliged to live separately.

(3.) DECISIONS bearing on the rights of a Hindu reversioner are relied upon in support of the contention that the plaintiff's position in the case may be equated to that of a Hindu reversioner and it is urged that if a Hindu reversioner is considered to have such interest in the property as would entitle him to safeguard the interest of the reversion by securing the property from the mortgagee, there is no reason why the plaintiff who has a contingent interest should not be considered to have such interest in the property, as she is interested in seeing to the property being secured for her in case the contingency should occur at any time, in which event she would become entitled to the possession of the property. There are cases in which a lessee of the mortgagor has been held entitled to a right to redeem. That is apparently for the reason that he is entitled to remain in possession of the property.