L R RAMA AIYAR Vs. ASMADHAVA RAO

JUDGEMENT

(1.) THE only question for decision in this appeal is whether the mortgage debt for which the suit was laid is liable to be scaled down under Madras Act IV of 1938. THE mortgage is dated 9 January, 1926 and purports to be a deed of usufructuary mortgage in and by which the property in suit was mortgaged under a stipulation that the mortgagee should be in possession of the property in lieu of interest, no rate of interest being stipulated as being payable to the mortgagee. THErefore, on the plain language of the document, it comes directly within Section 10 (2) of the Act, which distinctly provides that nothing contained in Secs.8 and 9 shall affect mortgages of the description of the suit mortgage. THE learned Judge in the Court below took the view that this usufructuary mortgage was executed in renewal of two prior mortgages which were simple and as there is a clause in the present mortgage deed that those simple mortgages should be kept alive, the suit must be deemed to have been laid even on the original mortgages and therefore the plaintiff was not entitled to claim the benefit of the exemption under Section 10 (2). It seems to us that the learned Judge has misconstrued the clause by which it was agreed that the prior mortgages should be kept alive. That clause was put in for the benefit of the mortgagee so that he can use it as a shield against any mortgages which might have intervened between the two prior mortgages and the present usufructuary mortgage; and in fact on a reference to the plaint it will be seen that the third defendant was setting up a claim under such an intervening mortgage. We have looked into the plaint and we think that the suit was laid upon the mortgage dated 9 January, 1926. We think that the learned Judge on his mistaken view of the deed of mortgage scaled down the debt which he is not entitled to do. We therefore set aside the preliminary decree and the final decree of the lower Court dated 4 January, 1939 and restore the preliminary decree as it was originally passed on the 24 September, 1936. A final decree will be passed by the lower Court in terms of the said preliminary decree. THE appellant is entitled to his costs of this appeal and also in the Court below,