ANNALAKSHMI AMMAL Vs. SHANMUGAM PILLAI

JUDGEMENT

(1.) This appeal arises out of a suit filed in the Court of the Subordinate Judge of Madura for the redemption of an alleged mortgage by conditional sale and in the alternative for a decree for specific performance of an agreement to resell. Admittedly the suit on the basis of the alleged mortgage did not lie by reason of the proviso inserted in Section 58(c) of the Transfer of Property Act by the Amending Act of 1929. The learned Subordinate Judge found, however, that the plaintiffs were entitled to a decree for specific performance. The defendants have appealed.

(2.) On the 13 October, 1921, the first plaintiff's elder brother, Arumugam, the first plaintiff and his younger brother, the second plaintiff, for himself and his minor son, the fifth plaintiff mortgaged 58 59 acres of agricultural land to one Viswanatha Aiyar to secure a loan of Rs. 20,000 bearing interest at 10 1/2 per cent, per annum. On the 12 March, 1929, the first plaintiff, as the manager of the family, created a second mortgage over the same properties in favour of the first mortgagee's brother Balasubramaniam to secure a loan of Rs. 5,000. Viswanatha Aiyar died in 1930 and the surviving members of the family became entitled to both the mortgages. On the 7 January, 1937, there was due under those mortgages the sum of Rs. 31,300. On that date the mortgagors sold to Balasubramaniam 32 17 acres of the mortgaged property in settlement of this claim. Two days later Balasubramaniam leased the 32-17 acres to the first plaintiff for a period of six years at an annual rental of Rs. 1,450. The first instalment of the rent was to be paid on the 30 April, 1938, and the subsequent instalments on the 30 April in each succeeding year. In default of payment of any instalment of rent by the due date the amount was to bear interest 12 per cent, per annum. On the same day Balasubramaniam agreed with the lessee that if he paid the rent regularly and paid Rs. 31,500 before the 30 April, 1943, he would reconey to him the 32.17 acres. It is this agreement which is made the basis of the claim for specific performance.

(3.) Balasubramaniam was joint with his younger brother Rangaswami. In 1938 they separated and to Rangaswami was assigned as part of his share in the family estate the 32.17 acres of land, subject to the lease and the agreement of the 9 January, 1937. Rangaswami died on the 12 October, 1942. The suit was brought against his daughters as his heirs. They are the appellants.