CHINNI VENKATACHALAM CHETTI Vs. ATHIVARAPU VENKATRAMI REDDI

JUDGEMENT

(1.) This appeal arises out of a suit to enforce two deeds of mortgage dated 24th June, 1924 and 24 April, 1930, executed by the deceased father of defendants 1 to 3 to the plaintiff. Both the deeds of mortgage not only gave security to the plaintiff over the immovable property comprised therein but also over the produce realised therefrom every year.

(2.) The operative portions in the deeds of mortgage run thus: The produce realised therefrom every year have been hypothecated to you.

(3.) The question for decision in this appeal is whether the plaintiff is not entitled to enforce his mortgage security over a sum of Rs. 364 which was deposited into Court during the pendency of the suit being the net sale proceeds of the crops of Fasli 1345 on lands which are items 1, 2, 8, 9, 10 and 11 of Schedule A to the plaint comprised in the deeds of mortgage. The question arises in this way. On the 14 of May, 1933, the father of defendants 1 to 3 executed a registered lease deed of the said lands in favour of defendants 7 and 8 for a period of five years commencing from Fasli 1343. The rent reserved thereunder was 10 putties of paddy and 80 bundles of hay worth Rs. 10. The sixth defendant in execution of a money decree obtained by him against defendants 1 to 3 as representatives of their father in O.S. No. 149 of 1934 on the file of the District Munsif's Court of Nellore attached the immovable properties which were comprised in the deeds of mortgage. Objections were raised as regards the sale of the properties in pursuance of that attachment and the matter was compromised by the mother of defendants 1 to 3 executing a deed of transfer of the said lease in favour of the sixth defendant for the unexpired period of three years in satisfaction of his decree and the sale and other proceedings were stayed. The deed of transfer is dated 24 September, 1935. The sixth defendant full1 well knew that the property comprised in the lease deed was subject to the two mortgages in favour of the plaintiff because it was distinctly recited in the counter-affidavit filed by the guardian of defendants 1 to 3 objecting to the sale that the property was subject to two mortgages in favour of the plaintiff. The plain tiff also obtained a money decree against defendants 1 to 3 in S.C.S. No. 117 of 1934 on the file of the District Munsif's Court of Nellore in respect of an unsecured debt due by their father and in execution of that decree attached the standing crops on the lands which were the subject-matter of the lease. Two claim petitions were put in, one by the tenants, defendants 7 and 8 and the other by the sixth defendant. Both the claims were allowed on the ground that the possession of crops was not with the plaintiff. The crops were thereafter harvested and before they could be removed they were again attached by the eleventh defendant in execution of a money decree. The plaintiff filed the present action and applied for the appointment of a receiver to take possession of the said crops. By an order dated 7 July, 1936, the crops were directed to be sold and after meeting certain outgoings the balance was directed to be deposited into Court and from and out of the amount so deposited defendants 7 and 8 were asked to take their lessees share. It is with respect to the remaining amount that a controversy has arisen between the plaintiff and the sixth defendant. Under both the deeds of mortgage the plaintiff is given security over the produce. Under Section 3 of the Transfer of Property Act immovable property does not include growing crops. Therefore the deeds of mortgage will operate in respect of the produce on the land as a mortgage of movable property. Under the Indian Law there can be a valid mortgage of movable property. Vide Misri Lal V/s. Mozhar Hossain (1886) I.L.R. 13 Cal. 262. The moment the crop comes into existence the mortgagee gets title to the crop. The principle of law that is usually applied is that enunciated by Jessel, M.R., in Collyer V/s. Isaacs (1881) 19 Ch. D. 342, namely: A man can contract to assign property which is to come into existence in the future, and when it has come into existence, equity, treating as done that which ought to be done, fastens upon that property, and the contract to assign them becomes a complete arrangement.