HAKEEM PATTE MUHAMAD Vs. SHEIKH DAVOOD

JUDGEMENT

(1.) A vendee from the original mortgagors brought this suit for redemption. The suit document is termed swadina tanaka meddatu sharatu pattiram, which may be translated as a possessors mortgage-deed containing a condition for a period fixed. It recites that the mortgagors have received Rs. 10 and have mortgaged their house site with a thatched house standing thereon, that they undertake to pay the principal and interest of these Rs. 10 within a year and take back possession of their house and site, and that, if they do not act according to these conditions, they will surrender the house and land treating the transaction as a sale.

(2.) This suit for redemption was brought seventeen years after the term expired.

(3.) The District Munsif dismissed the suit on the ground that the 3rd defendant had had adverse possession for over 12 years, following Usuman Khan v. Nagalla Dasanna 16 Ind. Cas. 694 : 37 M. 545 : 12 M.L.T. 330 : 23 M.L.J. 360 : (1912) M.W.N. 995. The facts of that case were somewhat different. The parties agreed to treat the possession of the mortgagee as the possession of a full owner after possession had been enjoyed for eight years under the mortgage, and nine years after the execution of the deed they showed by their actions that they wished to act upon that agreement. It is, of course, always open to a mortgagor and a mortgagee to enter upon a fresh transaction independent of the mortgage extinguishing the mortgage and passing the property to the mortgagee as a purchaser. See Kanhayalal v. Narhar 27 B. 297 : 5 Bom. L.R. 140. But here we are concerned only with the terms of the document. The District Judge has treated it as an anomalous mortgage, in which case under Section 98 of the Transfer of Property Act the rights and liabilities of the parties have to be determined strictly by their contract. The appellant s Vakil maintains that it is a usufructuary mortgage or a combination of a usufructuary and a simple mortgage with a clog on the equity of redemption, and he quotes Brinivasa Aiyangar v. Madluikrishna Filled 22 Ind. Cas. 54 : 26 M.L.J. 47 : 14 M.L.T. 547 : (1914) M.W.N. 81 : 38 M. 667 in support of his argument.