RAMAKKAMMAL Vs. C G SUBBARATHNAM IYER

JUDGEMENT

(1.) This is an appeal by the first defendant against the decree of the Subordinate Judge of Coimbatore granting to the plaintiff a preliminary mortgage decree.

(2.) On the 20th February 1989, the first defendant executed a deed which is described as a usufructuary mortgage deed for a sum of Rs. 4,000. The property comprised in the mortgage is a terraced building in Coimbatore. Under this document, it was stipulated that the mortgagee should in lieu of interest on the amount advanced enjoy the property mentioned, that is, the house as under a usufructuary mortgage. It further provided that:

(3.) The learned Subordinate Judge framed as many as 8 issues in the case covering the contentions of the parties, but on the chief points on which the parties were at variance he found that the mortgage, notwithstanding the covenants (above set forth) contained in Ex. P-l, was a usufructuary mortgage and not an anomalous mortgage. On the question of delivery of possession, he upheld the contention of the plaintiff that the house, in fact, continued to be in the possession of the first defendant. He followed the decision of the Full Bench in - Subbamma v. Narayya', 41 Mad 259 (FB), which held that it under a usufructuary mortgage possession was not delivered, the mortgage is not a usufructuary mortgage within the meaning of S. 58(d) of the Transfer of Property Act and that the mortgagee is entitled to bring a suit for sale of the mortgaged property. In view of this decision he held that the plaintiff is entitled to a decree for sale. He was also of the opinion that the plaintiff was entitled to claim damages in lieu of interest, in view of two decisions in -- 'Subramania Aiyar v. Panchanada Odayar', AIR 1932 Mad 175 and --'Gurusami Thevan v. Ganapathi Chetti', AIR 1932 Mad 173. He found also that the varthamanam was not enforceable as it was intended merely to enable the first defendant to effect a private sale of the property and that the concession granted by the plaintiff was subsequently withdrawn by him as it was not accepted immediately and acted upon. In the result the learned Judge passed a preliminary decree for sale of the property.