SURYADEVARA SEETARAMAYYA Vs. SURYADEVARA KOTAYYA

JUDGEMENT

(1.) The first question we have to decide in this second appeal is one of the construction of Exhibit A, the mortgage-bond executed by the respondents in favour of the appellant. Regarded from the point of view of one party or the other, the question is not free from difficulties. The instrument is one of simple mortgage which recites that on taking account of the debts due by the respondents, Rs. 1,777 were still owing to the appellant, that for Rs. 277 out of this amount, the respondents executed a promissory note and for the balance Rs. 1,500, Exhibit A was executed by them. They agreed to pay, in satisfaction of the amount, 75 putties of paddy in 10 instalments of 7 1/2 putties each every year. The first payment was to be on the 6th March 1905 and the last on the 26th March 1914. Then the deed provides: "Should default occur in giving the paddy in any of these instalments, we shall on demand pay the whole amount with interest at one per cent, per mensem notwithstanding the instalments still remaining to run." It goes on to say: "We have mortgaged the property described in the subjoined schedule for that amount till this debt is repaid and have retained it in our possession. We shall, therefore, fully discharge the said debt according to the said instalments by the mortgaged property, by our other properties and by ourselves, and we shall redeem your mortgage."

(2.) It is clear that the expectation of the parties was, that the debt would be discharged by delivery of grain in the course of JO years. But there is no stipulation that the borrower was to be precluded from discharging that debt and redeeming the property before the expiration of 10 years. Nor is there anything to prevent his paying the amount due in money if he was able to do so.

(3.) The question that has arisen is, the respondents having made default in delivering the sixth instalment of paddy, does the document entitle the appellant to demand delivery of the remaining instalments of grain at once or their value in money, or is he entitled only to payment of so much of the principal which is not satisfied by previous instalments already delivered, with interest at twelve per cent? That depends on the meaning of the Clause above set out. Does the stipulation to pay the whole amount with interest at one per cent, per mensem" refer to the remaining instalments of paddy or the balance of the debt? The vernacular word in the original which has been translated as "amount" is "motham" which, I understand, means total." Whether it is an apt word to use in this connection or not, it means the balance which is left unpaid. That might apply either to the instalment of paddy or the balance of the principal amount. The words "interest at one per cent, per mensem" would undoubtedly be more appropriate if what was intended to be payable was money and not grain. There is no price fixed for the paddy nor any procedure laid down for its valuation. A reading of the whole instrument suggests that the payment in paddy was regarded as more convenient to the borrower, although the quantity to be delivered in different instalments would amount to much more than interest calculated at twelve per cent. The fact that for a portion of the debt a promissory note was executed and no stipulation is made in the document to debar payment of the debt in money at any time convenient to the debtor tends to strengthen this inference. It is true, on the other hand, that it is nowhere mentioned that each instalment of paddy was to be deemed equivalent to payment of 1/10th of the debt. But having regard to the fact that the instalments were absolutely equal in quantity and to be paid about the same time of the year, the inference is strongly suggested that that is what was intended. It could not, of course, have been intended that each instalment was to represent 1/10th of the principal amount only; that is, Rs. 150, for the value of 7 1/2 putties would admittedly be at least double that amount. What the parties contemplated apparently was that by the delivery of each instalment as provided, 1/10th of the entire debt including the principal and interest or profits was to be discharged. If this reading of the mortgage-deed is right all that the appellant is entitled to, is half of the principal amount with interest at twelve per cent. This is the interpretation placed upon the document by both the lower Courts. The District Munsif was undoubtedly wrong in admitting extrinsic evidence of the intention of parties and relying upon it in construing the document, and the Subordinate Judge has perhaps mixed up the question of hardship a little too much with the question of interpretation. But I am of opinion, for the reasons which I have stated, that their construction of Exhibit A is right. In that view, the question as to whether the stipulation in the sense contended for on behalf of the appellant would be penal and should be relieved against, does not call for decision. The appeal shall, in my opinion, be dimissed with costs. Ayling, J.