NAGAMMAL AND ANR. Vs. KRISHNASWAMI NAYUDU

JUDGEMENT

(1.) THE second appeal raises two interesting questions as to whether the mortgagors' equity of redemption in an usufructuary mortgage created by them is tangible immovable property, capable of being sold without a registered instrument therefore where its value is less than Rs. one hundred, and secondly, if, even such a right of redemption is to be held tangible immovable property, whether delivery of the property as contemplated under Section 54 of the Transfer of Property Act, can be validly effected by the mortgagors -vendors without first dispossessing the usufructuary mortgagee.

(2.) THE appeal has come to be filed by the appellants herein in the following circumstances: One Alagiriswami Naidu, husband of the first appellant and father of the second appellant, usufructuarily mortgaged in item of property, of which the suit property is one half, to the respondent herein on 30th April, 1931 under Exhibit B -1 for a sum of Rs. 200 and in pursuance of the mortgage, the respondent Was inducted into possession of the property. In or about the year 1934 Alagiriswami died leaving the appellants (Plaintiffs in the suit) as his heirs. In the year 1960, the respondent -defendant released one half of the hypotheca and gave possession thereof to the appellants Divergent versions are put forward by the contesting parties as to how a moiety of the hypotheca was released and given to the appellants. According to the appellants, they approached the respondent in the year 1960 for releasing a portion of the hypotheca on account of the fact that the value of the property had increased considerably and therefore a. half portion of the hypotheca would be adequate. security for the debt and the income therefrom would also be adequate to discharge the interest obligation and the respondent acceded to their request and delivered possession of a half portion of the hypotheca to the appellants. According to the respondent, however, soon after the death of Alagiriswami, the first appellant received a sum of Rs. 25 from him for performing the obsequies of her husband and in consideration thereof, she, acting on behalf of herself and the second appellant who was then a minor, made an oral sale, to him, of the equity of redemption. Since then, the mortgage became extinguished and he (the respondent) Was in possession of the entire hypotheca as owner. But, in the year 1960, the appellants approached him and asked him to covey back the hypotheca to them and he acceded to that request partly at the intervention of mediators and on account of the fact that the appellants had by then become closely related to him. It would appear that the first appellant's daughter has been given in marriage to the Respondent's brother's son. The case of the respondent was that he received a sum of Rs. 100 from the appellants and effected an oral sale of a half portion of the hypotheca and it was by virtue of that sale the appellants are in possession of a portion of the property originally mortgaged. In effect, the precise stand of the appellants -plaintiffs in the suit was that 1% mortgage was still in force and therefore, they were entitled to exercise their right. of. redemption over the remaining .extent of the mortgaged property in the possession of the respondent. The categorical stand of the respondent, however, was that by virtue of the oral sale of the equity of redemption in the year 1939, the right of redemption was extinguished and the appellants were not entitled to base their action on the mortgage.

(3.) THE learned District Munsif of periakulam who tried the suit, upheld the case of the appellants and decreed the suit for redemption. He did not believe the oral sale of the equity of redemption in 1934 or the oral sale of a moiety of the hypatheca in l960. In the appeal preferred by the rsepondent, the learned Subordinate Judge of Dindigul took a different view of the matter and held that the mortgage Was extinguished on account of the oral sale of the equity of redemption and the giving away of a portion of the hypotheca in the year 1960 by the respondent was not by way of release, but was by way of sale to the appellants. He therefore allowed the appeal and dismissed the appellant's suit.