SYED IBRAHIM SAHIB Vs. ARMUGATHAYEE

JUDGEMENT

(1.) The plaintiff s suit in this case is to enforce payment of the amount due to her on two mortgages executed by the 1st defendant s father in July 1891. Of these, the first, Exhibit C, is a usufructuary mortgage for Rs. 500. The second, Exhibit D, is a simple mortgage for Rs. 200. On _the 4th September 1896. a sale-deed was executed by the 1st defendant s father in plaintiff s favour. The consideration, Rs. 900, for the sale-deed was made up of Rs. 700, the principal amounts due on the two mortgages, Rs. 900, the interest on the simple mortgage bond, Rs. 55, the amount due to plaintiff for the Municipal tax which the vendor had covenanted to pay by the terms of the usufructuary mortgage-deed and certain sundry amounts which he had borrowed from the plaintiff and Rs. 15 paid in cash. The 2nd defendant had obtained from the vendor a mortgage of the same property in 1893. He instituted a suit on it in 1905, brought the properties to sale and purchased them. The present plaintiff was the 2nd defendant in that suit. The decree directed the sale of the property subject to the plaintiff s prior encumbrances. The plaintiff claimed to recover in this suit as due to her under her mortgages Rs. 830, the amount due up to 4th September 1896 as fixed in the sale-deed, Exhibit E, and Rs. 800 for interest subsequent to that date up to the 17th July 1908, the date of the plaint. She also claimed Rs. 98-5-4, the total amount of Municipal tax paid by her for the property and Rs. 171-10-8 for repairs and improvements made by her.

(2.) The 2nd defendant alleged that the plaintiff was not entitled to recover anything, contending that her mortgage rights over the property were destroyed by her purchase in the year 1896 and that she was not in law entitled to recover anything either on account of Municipal assessment or repairs and improvements.

(3.) Both the lower Courts have held that the mortgages must be regarded as kept alive as against the 2nd defendant. The District Munsif allowed the interest claimed on the simple mortgage-bond up to the date of plaint and further interest from the date of plaint to the, date fixed for payment at 1 1/8 per cent, per mensem, the rate stipulated in Exhibit D. He disallowed the amount claimed for Municipal assessment and repairs and improvements. On appeal, the District Judge held that the plaintiff was entitled to add the amount paid by her for Municipal assessment and also the amount spent by her for restoring a room which had fallen down. The amount added to the Munsif s decree for the expenses of the repairs was Rs. 128- 6-0.