PYARI BIBI Vs. RANGA CHARIAR

JUDGEMENT

(1.) This appeal arises in a suit for redemption of a usufructuary mortgage. The plaintiff acquiring the equity of redemption under a sale deed Ex. A. 2 dated 05-4-1947, executed by Kalian, the son of Rajagopal Chetti instituted the present suit for redemption. The property was usufructuarily mortgaged by Rajagopal Chetti, the father of the vendor of the plaintiff, and his brother Krishnan Chetti to Sabji alias Abdul Rahiman for Rs. 2000 on 03-1-1926 (Ex. 13. 2).

(2.) The other contention is that under the terms of Ex. B. 3, the subsequent simple mortgage executed by Rajagopal Chetti, the plaintiff is bound to redeem both the mortgages, Ex. B. 2 and B. 3 and without the payment of the amount due under Ex. B. 3 no redemption decree can be passed. The condition in Ex. B. 3 is as follows : (After stating the condition in the Tamil script the judgment proceeds :)

(3.) Mr. Ramachandra Aiyar does not contest the right of a mortgagor who has executed two or more mortgages in favour of the same mortgagee to redeem any one such mortgage separately but contends that the clause in Ex. B. 3 which is relied on as amounting to a clog on the equity of redemption amounts to a contract to the contrary within the meaning of S. 61 and therefore the plaintiff must redeem both the mortgages together.