MUHAMMADHU MAMOONA LABBAI Vs. CRAMANATHA PILLAI

JUDGEMENT

(1.) The only point pressed for the appellants in this second appeal is that on a proper construction of the othi deed, Ex. P-18, there is no personal covenant to pay the amount due under the deed to enable the plaintiff to bring a suit for sale. Mr. Swaminatha Aiyar for the appellants also raised another point that even if the deed did contain a personal covenant to pay, the suit for sale is not maintainable because after the amendments to Secs.67 and 98 of the Transfer of Property Act the mortgage in question should be treated as an anomalous mortgage and if the deed itself did not confer a right on the mortgagee to institute a suit for sale he will not have that right. This point was not raised in either of the Courts below. It assumes that the amendments referred to are retrospective and will affect rights under a mortgage of 1922. In the absence of authority I am not inclined to agree with the appellants Counsel that these amendments are retrospective. But I shall not express any final opinion because I do not think I should permit the appellants to raise this point, not having raised it in the Courts below.

(2.) The relevant part of the document in question is as follows in the translation by this Court: You shall, for this sum of rupees four thousand two hundred and fifty, take possession of the schedule property under othi for a period of six years from this day, pay the assessment due to the Government and enjoy the property. On the expiry of the stipulated period, I shall pay the amount and redeem the othii. 2. As Mr. Swaminatha Iyer for the appellants has taken objection to the correctness of this translation, I am also setting out the original Tamil which is as follows.

(3.) Both the lower Courts have held on a consideration of the actual language used and with the assistance of the decisions in which similar language had been used that there is a personal covenant to pay the othi amount.