THRIKKIDIRI MANAKKAL VASUDEVAN ATISSERIPAD Vs. KONURUPETTAMANNA ALIAS PUNNAMANNA THARAVATTIL KARNAVAN AND KAIKARIAKARTH GOVINDA MENON

JUDGEMENT

(1.) On the 8th April 1896, under Exhibit A, the defendants mortgaged with possession nine items of property estimated to yield 1,000 paras of paddy which, after meeting the assessment and interest, left 126 paras to go in reduction of the principal. On the same day, by Exhibit B, the mortgagors leased back from the mortgagees the nine items on the terms that they were only to pay the mortgagees the 650 paras due for interest on the mortgage and retain 350 paras out of which they were to pay the assessment.

(2.) On the 1st September 1903 the mortgagors executed another mortgage in favour of the mortgagees, Exhibit C, for Rs. 3.300, of 19 items of property, of which items 1 to 9 were the subject of the mortgage with possession (Exhibit A).

(3.) The mortgage was expressly recited to be given as security for the principal sum of Rs. 3,300 and the interest thereon, and as to items 1 to 9 was with possession and as to the other items without possession. On the same day the mortgagors again took a lease of the nine items which wore included in both mortgages at a rental of 1,000 paras of paddy. On these facts the Subordinate Judge has held that the plaintiff is not entitled to a charge on the mortgaged properties for the arrears of interest due on the mortgage, although the mortgage is expressly stated to secure the interest as well as the principal, by reason of the fast that the mortgagors took the nine items on lease under Exhibit 1) and that the rent due by them for more than three years is barred. He, accordingly, only allowed the amount of three years rent. The Subordinate Judge says the interest on the mortgage Exhibit D had been agreed to be paid out of the usufruct of the nine items comprised in Exhibit A, but I do not find any such provision in Exhibit C and I can see no reason for refusing to give effect to the provisions of the Exhibit 0 that the whole 19 items mortgaged should be security for the interest as well as the principal would, therefore, modify the decree accordingly. The similar ground of appeal as to the interest in Exhibit A was not pressed, and the other objections are untenable. The decree will be modified accordingly. The parties will pay and receive proportionate costs of the appeal.