RAMAKRISHNAMA CHETTY Vs. VUVVATI CHENGU AIYAR

JUDGEMENT

(1.) We have no doubt on a construction of Exhibit A that it is a deed of mortgage as it expressly says in several places that it is executed as a mortgage of certain immoveable property and the profits of the properties are to be spent for the expenses of the mortgagee which is a religious endowment of which the plaintiffs are constituted trustees under that document. See also Venkatrama Aiyar v. Suppa Nadan and Ors. (1914) M.W.N. 501.

(2.) The arguments of the appellants (5th defendant s) learned Vakil which are based on the construction that Exhibit A is not a deed of mortgage and hence that the provisions of Section 68 Clause (6) of the Transfer of Property Act do not apply need not be further considered though we might add that we are not prepared to accept the argument of the learned Vakil that in the case of a mere charge as distinguished from a mortgage the provisions of Section 68 as to the liability of a mortgagor who commits was he do not apply to the person creating a mere charge notwithstanding the very wide words of Section 100 of the Transfer of Property Act.

(3.) The only other contention on the Appellant s side is that Section 68(6) of the Transfer of Property Act makes only the "mortgagor" liable personally for the mortgage money when he commits a wrongful act or default to the prejudice of the security. In other words the contention is that the heir or the assignee of the equity of redemption is not intended by the section to be made liable personally for the mortgage money even when he himself is personally responsible for the waste. In the first place even without a special legislative provision, every person whether the mortgagor or a stranger who commits waste to the detriment of the security of the mortgagee is liable under the general law to the mortgagee for damages to the extent of the damages of the security Aiyappa Reddi v. Kuppusami Reddi (1914) I.L.R. 28 M. 208, and Section 68(b) merely extends the rights of the mortgagee if, the wrongdoer is the mortgagor to the length of enabling the mortgagee, not only to sue for the exact amount of the damages caused but for the whole of the mortgage money itself.