KUMARAPPA CHETTIAR Vs. SUPPAN CHETTIAR

JUDGEMENT

(1.) This appeal arises out of a suit filed by the plaintiff for redemption of the plaint mentioned usufructuary mortgage which is evidenced by Ex. D The plaintiff sued in his capacity as a later usufructuary mortgagee, defendants 2 to 5 being the mortgagees under Ex. D. One of the contentions raised by the mortgagees by way of attack against the plaintiff's claim is, that the suit is premature. This question depends upon the construction of the terms of the mortgage deed. That deed is dated 8 July 1908 and provides a period of 15 years for the enjoyment of the mortgaged properties by the mortgagees from the date of that document, and further recites that the mortgagor should pay the amount in the beginning of the sixteenth year. If the terms of the deed are literally understood, we must hold that the amount of the mortgage is payable at the end of the 15 years term which should be calculated from the date of the mortgage deed. In this view the time for redemption would expire on 8 July 1923, and the present suit is sustainable. It is however contended on behalf of defendants 2 to 5, that the mortgagees should have a period of 15 years for the enjoyment of the mortgaged properties, irrespective of the term "from this year," indicating the commencement of the period.

(2.) If the items of consideration set forth in the mortgage deed are taken into account, it is clear that the sums of Rs. 8,500 and Rs. 6,000, were not paid on the date of the mortgage deed, but were undertaken to be paid by the mortgagees in discharge of two prior othies. The only amount that was actually paid on the date of Ex. D was Rs. 1,000. We find that the terms fixed for the redemption of the two prior othies had still to run when Ex. D was executed. Those mortgages were redeemable in April 1911. That being so the mortgagees under Ex. D should be taken to be legitimately entitled to possession of the two villages covered by the previous othies, only from April 1911. They were at liberty to enjoy the third item of the mortgaged properties mentioned in Ex. D even from the date of the deed. Assuming that the period of 15 years enjoyment with respect to those two villages should be reckoned from the date of the expiry of the term of the previous othies the time for redemption would be ripe by April 1926. Even from this stand-point, the present suit which was filed on 28 July 1926 is certainly not premature. This objection against the maintainability of the suit must therefore be overruled.

(3.) The second question for consideration is what is the proper amount payable to defendants 2 to 5 in redemption of the suit mortgage. That the principal amount of Rs. 15,500 is due is admitted on both sides and the only point in dispute is whether the mortgagees would be entitled to any interest by way of compensation for the period subsequent to 2 April, 1911 till the date of their actually taking possession in April 1913. The mortgage deed Ex. D provides for the enjoyment of the rents and profits in lieu of interest. There is no specific provision for the payment of interest at a certain rate. The question before us is whether the mortgagees are entitled to claim any reasonable rate of interest on their principal amount for the aforesaid period and can claim the payment of the same along with the principal money at the time of the redemption of this mortgage. The case set up by defendants 2 to 5 is, that prior to April 1911 they did make a deposit of the amount of the prior othies in Court and therefore they must be deemed to have been wrongfully kept out of possession of the mortgaged properties on account of the plaintiff's conduct. "What we find from the judgment in the previous suit (Ex. 2) is that there was no valid tender of the mortgage money, as the plaintiffs therein (the present defendants 2 to 5) failed to prove that they made an effective deposit into Court in proper time so as to enable the mortgagee to draw the money in accordance with the stipulations contained in the othi deeds.