DRONAMRAJU LAKSHMI NARASIMHA RAO PANTULU Vs. IMMANI SESHAYYA

JUDGEMENT

(1.) One Venkatrayudu Pantulu mortgaged the plaint properties to one Venkanna by two deeds, Exs. A and B on the 2nd May, 1865. The equity of redemption was sold by the Court in execution of a money decree against the mortgagor and was purchased by the plaintiff. He has brought the suit for the redemption of the mortgage against the defendants who are the representatives of Venkanna alleging that the mortgage debt has been discharged and that he is entitled to have an account taken of the rents and profits of the mortgaged property. The District Munsif held that the plaintiff was not entitled to redeem the mortgage as the term of 55 years fixed in the mortgage deed had not expired and he gave a decree for a certain amount which under the mortgage the mortgagee undertook to pay to the mortgagor. The plaintiff appealed and the Subordinate Judge of Ellore dismissed the appeal. The plaintiff has preferred this Second Appeal.

(2.) The first contention is that he is entitled to redeem . the mortgage before the expiry of the term as the term is only for his benefit. Mr. Somasundaram who appears for the appellant contends that the presumption is that the term fixed in the mortgage deed is always for the benefit of the mortgagor and that he is entitled to redeem the mortgage at any time he likes. When possession is given to the mortgagee and the mortgagee is asked to pay himself the interest on the mortgage amount from the rents and profits of the mortgaged property and when the rents and profits are liable to fluctuation, it cannot be said that the term fixed in the mortgage is only for the benefit of the mortgagor. In such a case the term is equally for the benefit of the mortgagee as well as the mortgagor. It is well settled that when a term is fixed in a usufructuary mortgage deed and possession is given to the mortgagee, unless there be a clause in the mortgage deed itself enabling the mortgagor to redeem the mortgage at any time he chooses, the mortgagee is entitled to remain in possession till the close of the term. Where the mortgagee is asked to pay himself the principal and interest out of the rents and profits of the mortgaged property, he is entitled to remain in possession till the mortgage debt is wiped off from the rents and profits of the property. The appellant relied upon the case reported in Mashook Ameen Suzzada V/s. Marem Reddy (1875) 8 MHCR 31 as supporting his contention. The facts in that case, no doubt, are similar to the present. But what the learned Judges held in that case was that it was a mortgage and that the mortgagor was entitled to redeem the property. The case does not support the appellant's contention. In Sri Raja Setrucherla Ramabhadraraju Bahadur V/s. Sri Raja Vairicherla Surianarayanaraju Bahadur ILR 2 M 314 it was held that "where the parties agree that possession of the property shall be transferred to a mortgage for a certain term it may be inferred that they intended that redemption should be postponed till the end of the term. But the creation of the term is by no means conclusive on this point." Ankinedu V/s. Subbhah (1911) ILR 35 M 744 : 21 MLJ 1010 does not help the appellant. All that was held in that case was that a provision in the mortgage deed whereby the mortgagee is to remain in possession after the payment of the mortgage debt is unenforceable as it acts as a fetter upon the right to redeem. In Muhammad Sher Khan V/s. Raja Seth Swami Dayal (1921) ILR 44 A 185 : 42 MLJ 584 it was held that the provisions of Section 60 of the Transfer of Property Act were imperative and that the right of redemption cannot be taken away by any contract between the mortgagor and the mortgagee. Even an anamolous mortgage is subject to the provisions of Section 60.

(3.) The right of the mortgagor to redeem the mortgage is not disputed but the question is, when does the right to redeem accrue? In Bakhtawar Begam v. Husaini Khartum (1914) ILR 36 A 195 at 199 : 26 MLJ 474 (PC) their Lordships of the Privy Council held: "Ordinarily and in the absence of a special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right to redeem can only arise on the expiration of the specified period;. But there is nothing in law to prevent the parties from making a provision that the mortgagor may discharge the debt within the specified period and take back the property." In Tirugnana Sambandha Pandara Sannadhi V/s. Nallatambi (1892) ILR 16 M 486 : 2 MLJ 272 Muthuswami Aiyar, J., and : Wilkinson, J., held "Having regard to Secs.60 and 62 of the Transfer of Property Act the Legislature appears to have adopted the principle that in the absence of a stipulation to the contrary the presumption is that the right to redeem and the right to foreclose arise at the same time and that when a date is fixed for the payment of the mortgage debt and the mortgagee cannot foreclose earlier the mortgagor also cannot redeem before the appointed time "See also Gunnam Dorayya V/s. Vadapalli Ayyamacharlu and Aga Muhammad Ally Beg v. Venkatappayya .