THUMBASAWMY MUDELLY Vs. MAHOMED HOSSAIN ROWTHEN

JUDGEMENT

(1.) IN the year 1815 certain persons described as the mirasi proprietors of eight shares in Rajagiri executed the deed of the 2nd of July of that year (which" is set out above). It purports on the face of it to be a deed of usufructuary mortgage of certain lands in the hamlet of Manmoda, which is attached to Rajagiri, and to be made in favour of one Appwoo Modaliar, for the purpose of securing the repayment of 2500 pons in the manner therein specified.

(2.) THE name of Appavoo, was, however, used for that of Saminadha Modaliar, who was the real mortgagee, and is now represented by the Appellants. The Respondents are the representatives of the mortgagors. This deed must now be taken to comprise all the terms of the contract; and the only question is whether by force, and according to the tenor of its provisions, the mortgagees became in 1820 the absolute proprietors of the property; or whether they continued to hold it as mortgagees, subject to the right of redemption, in which case the mortgage debt is admitted to have been liquidated by the usufruct at the close of the year 1866-67. The Civil Court at Tanjore, and the High Court of Madras, have taken the latter view of the transaction, and have given the Respondents the Plaintiffs in the suit, a decree for the lands with mesne profits from the above-mentioned date.

(3.) THEIR Lordships will in the first instance proceed to determine the first of these questions.