PONNA VIYYANNA SARMA Vs. REDDI MANIKYAM AND ANR.

JUDGEMENT

(1.) THE petitioner seeks to revise the order of the Subordinate Judge of Rajahmundry passed in I.A. No. 756 of 1946 in O.P. No. 34 of 1928 on his file.

(2.) A sum of Rs. 1739 -13 -3 has been deposited in Court, as compensation for acquisition of land which belonged to the husband of Reddi Manikyam, the first respondent to this petition, and which was in her possession. But since the estate held by her was only a widow's estate, the amount could not be paid over to her without the necessary safeguards. Thereupon, the petitioner, in this revision petition applied to the lower Court stating that he was willing to mortgage his property as security and receive the amount in Court deposit, for which interest at the rate of Re. 0 -11 -0 per cent, per month would be paid to the widow every year from the 20th March, 1930 onwards. He has been paying the amount regularly until sometime before the filing of the Interlocutory Application which has given rise to this Civil Revision Petition. By the said Interlocutory Application, the petitioner prayed that the registered security bond or mortgage may be cancelled and the property released from encumbrance since he had already deposited the amount borrowed under the security bond in Court. The learned Subordinate Judge held that the petition was premature because, in his opinion, the question of cancellation or the enforceability of the security bond does not arise except when the first respondent who is entitled to the benefit seeks to take action or until after her death. On this finding, the petition was dismissed and it is that order that is sought to be canvassed in revision.

(3.) MR . K. Bhimasankaram for the respondent wants me to construe the document as if the mortgagor is prohibited from paying the amount before the death of the widow who was the mortgagee and he relies upon the well -known and accepted principles laid down in a number of cases that a stipulation in a mortgage deed by which a mortgagee in possession would not be redeemed for a number of years, say thirteen years as in Rambaram Singh v. Ramker Singh, (1911) 10 I.C. 243, fifty years as in Sundar Singh v. Hukum Singh, (1914) 24 I.C. 926, and even fifty eight years as in Ramprasai v. Jagrup, (1912) 10 A.L.J. 157 would not amount to clog on the equity of redemption. Other decisions of this Court have held that a long term fixed in an usufructuary mortgage by which the mortgage would not be redeemed till the expiry of the term cannot amount to a clog on the quity of redemption. A recent decision reported in Kadir Bibi v. : AIR1946Mad542 , is to the effect that if the stipulation in a mortgagee deed is for its redemption only in a particular season of the year or on a particular day in the year, the mortgagor cannot redeem on any other date during the course of the year. In my opinion, all those cases contemplated a state of things in which the mortgagee is in possession. Such clauses are intended for the benefit of persons who should not be evicted from the mortgage property in their possession before the expiry of the agreed period. The present Case is different in this that here it is a simple mortgage and that the mortgagor continues to remain in possession of the hypothec. The clause in the deed that the mortgagor would continue to pay interest even if he wants to redeem the mortgage till the widow dies, is in my opinion a clog on the equity of redemption. The date of redemption is indefinite and uncertain though, as all human beings are mortal, there is a fixity about the redemption. An agreement that a mortgagor would not redeem the mortgage until the happening at an uncertain period of a certain event is to my mind, clogging the equity of redemption. The right to redeem as well as the right to foreclose, or sell, should be reciprocal and co -extensive and if the mortgagee can ask for the money even during her lifetime in case of default of payment of interest by the mortgagor regularly, it stands to reason that the mortgagor should also have the privilege of redeeming the mortgage before the happening at an uncertain time of the certain event in this case. As I have already stated, in my opinion, the clause does not create an inhibition in the mortgagor from paying the mortgage money within the outer limit of period, viz., the death of the widow.