BALASUBRAMANIAN Vs. RAMASAWMY CHETTIAR

JUDGEMENT

(1.) IN this case the defendant purchased the plaint property under Exhibit II by which it was agreed he should discharge a mortgage on the property in favour of one N.S. Saminathan Exhibit I and it was recited by the mortgagor that the property was not subject to any further encumbrances. It subsequently turned out that the purchase was invalid as made pendente We, against the plaintiff, a prior encumbrancer who had sued on his mortgage and has since brought the property to sale and become the purchaser. He now sues to recover the property from the defendant, who is in possession under his purchase. The lower Appellate Court gave the plaintiff a decree for possession. It is now contended before us that the decree should have been made subject to the plaintiff s redeeming the mortgage paid off by the defendant or allowing himself to be redeemed by the defendant. We think the contention is well-founded and that the case is covered by the decisions in Syamalarayadu v. Subbarayada 21 M. 143 and Chinnaswamy v. Padala Anandu 31 M. 439 : 3 M.L.T. 395 : 18 M.L.J. 306.

(2.) SEE also Ghose on Mortgage, Volume I, page 349 (4th Edition). The decrees of the lower Appellate Court must be modified accordingly so as to require the plaintiff to redeem the defendant by paying him Rs. 80, the amount paid by him to the mortgagee under Exhibit I within 6 months from this date, and in the event of his failing to do, so, to allow the defendant to redeem the plaintiff on the terms settled by the District Munsif. Each party will bear his own costs.