VADDIPARTHI NARAYANAMURTHY Vs. CADIMSETTI APPALANARASIMHULU

JUDGEMENT

(1.) The terms of Ex. A, the mortgage we have to construe, are given in the judgment of my learned brother, which I have had the advantage of reading ; they need not be repeated. Shortly the mortgage is usufructuary with conditions barring redemption (1) within five years and (2) after twenty years from its date. If there were only the second of these conditions, the case would be covered by the decision of the Full Bench in Kandula Venkiah V/s. Donga Pallayya (1918) I.L.R. 43 Mad. 589 the clog constituted by that condition on the equity of redemption being disregarded. The question is then whether, as defendants contend, the inclusion of the first condition deprives the document of its character as an usufructuary mortgage. As, we hold it does not do so, it is not necessary to consider whether the second condition must receive effect as, one of the terms of the mortgage with regard to Section 98 of the Transfer of Property Act.

(2.) If the condition postponing repayment of the mortgage money is regarded as intended for the benefit of the mortgagor, it will suspend only his liability to be sued, not his right to redeem before the date fixed, vide Rose Ammal V/s. Rajarathna Ammal (1898) I.L.R. 23 Mad. 33 and it clearly cannot affect the usufructuary character of the mortgage, so as to attract the operation of Section 98. Here however it must rather be regarded with reference to the possessory character of the mortgage, as intended for the benefit of the mortgagee. No authority directly relevant in such a ease has been cited. But the language of Section 62 entails that postponement of the right to redeem to a date fixed in one way, with reference to repayment of the mortgage money from the profits, is not inconsistent with the usufructuary character of the mortgage ; and we have been shown no reason why such postponement to a date fixed otherwise, by actual specification should be so. In fact the simplest and the sufficient ground of decision is that the definition of a usufructuary mortgage in Section 58(d) refers to payment of the mortgage money in connection only with the mortgagee's right to retain possession and includes nothing inconsistent with its application to mortgages, containing a condition for mere postponement of the right to o repay.

(3.) The conclusion must therefore be in plaintiff's favour and he must have a decree for redemption as proposed by the District Munsif, the Respondent being at liberty to draw the money, which, we understand, is in deposit in Lower Court.