NAGAR DAMODARA SHANBHOGUE Vs. CHANDAPPU PUJARY

JUDGEMENT

(1.) Plaintiff is the appellant. He sued for the recovery of a sum of Rs. 37,065-9-11 by sale of the mortgaged properties on the strength of an usufructuary mortgage deed, Exhibit A, which according to the plaintiff's contention contains a personal covenant to pay, whereby he is enabled to sue for the sale of the mortgaged properties, though the mortgage deed is styled as an usufructuary mortgage. The learned Subordinate Judge dismissed the suit by reason of his findings on issues 3 and 4. On a construction of the terms of a mortgage deed, he has held that there was no personal covenant to pay the mortgage amount and the suit for sale of the mortgaged properties is not therefore maintainable. This is the main question argued in this appeal.

(2.) The suit mortgage deed, Exhibit A, is an unduly long document and a full translation of it is given in the judgment of the Lower Court. For the purpose of deciding the point at issue, the following extract from the document would suffice: As we represented to you that there is some extra income in the property till the term stated here below, you should give us credit to a sum of Rs. 6,625 from the principal amount and you have agreed thereto out of concession to us. Deducting the said sum of Rs. 6,625, on payment (when paid) in one lump sum on the Kalavadhi Vishu Sankramana of Dundubhi year (1922-23) of the balance of Rs. 4,000 as also any arrears of rent that may remain due with your consent from any member of our family who may take the property on rent from you on the responsibility of the property, you shall receive the same and make over the property and documents as also the receipts which you obtain from the creditors. If we fail to pay the aforesaid amount on the due date as stated above, thereafter, unless we pay on Kalavadhi Vishu Sankramana of any year, we have no right to ask you to receive the amount and surrender possession during any other time of any year, and from the date of default on the due date until we discharge all rights under this deed, you shall not only enjoy the properties but shall also be entitled to appropriate the income towards the interest due to you on the principal amount and we shall have no right to claim any excess income from you. If you do not consent to allow any arrears of rent against the members of our family, this deed shall be no bar to your right of recovering the same on the responsibility of the said properties. If in addition to the aforesaid sum of Rs. 1,500 left in anamath with you to pay the aforementioned creditors, any excess sum is found due to them and is paid by you, the excess so paid, and if the assessment be enhanced at the time of the survey, the sum so enhanced also, together with interest at 8 per cent, per annum from the respective dates of payment we are liable to pay on the responsibility of the ildarwar property (property mortgaged usufructuarily), and we shall pay at the time of the final discharge of the amounts under this deed (when the accounts in respect of this deed are finally settled) the said sum also.

(3.) This deed was executed on 11 September, 1892 and it is specifically stated in the body of the deed, that possession of the properties was handed over to the mortgagee on sap ildarwar (usufructuary mortgage pure and simple). A period of 30 years is fixed for redemption, and by reason of the enjoyment of the properties by the mortgagee for that period, the entire interest due on the principal sum of Rs. 10,625 for the said period of 30 years and also a portion of the principal amount, namely, Rs. 6,625, must be taken to have been paid off. At the end of that period, the balance of principal remaining due is only Rs. 4,000. Provision is also made in this deed for the grant of portions of the mortgaged property on lease to any member of the family of the mortgagors and the arrears of rent remaining due are also payable along with the balance of the principal amount on the specified date at the end of the 30 years term. In the case of an usufructuary mortgage, there must be delivery of possession to the mortgagee coupled with an authorisation to retain such possession until repayment of the mortgage money, and receive the rents and profits in lieu of interest or in part payment of the mortgage money. An usufructuary mortgagee as such, has no right to institute a suit for sale of the mortgaged property, but must only continue to enjoy the same till redemption. If in such a mortgage deed, there is an express personal covenant to pay the money, apart from words merely indicating the time and the mode of redemption, a suit for sale may be instituted, but not otherwise. Even to sue for the mortgage money under Section 68 of the Transfer of Property Act, it must be shown that by the terms of the deed the mortgagor has bound himself to repay the same. So far as the claim for the recovery of the balance of principal, namely, Rs. 4,000 is concerned, we are unable on a proper construction of the terms contained in the deed, to read any personal covenant to pay the same. Any such covenant should be clear and unconditional in the undertaking to pay.