SUBBAN CHETTIAR Vs. RANGAN CHETTI

JUDGEMENT

(1.) This is an appeal against the decree of the Subordinate Judge of Tanjore in O.S. No. 80 of 1921 on his file. The suit was for the redemption of a mortgage in favour of the defendants. The Subordinate Judge dismissed the suit as premature and the plaintiff is the appellant before us. It would seem that the owner of the plaint properties, one Zamindar of Neduvasal, mortgaged the property first to one Oppillamani Chetti and others for a sum of Rs. 11,000. Under that document Oppillamani Chetti was to enjoy the property for a period of 12 years and he Was redeemable in the year 1911, 30 June. In June, 1901 the same Zamindar gave a second mortgage to defendants 1 and 2. The covenant with them was that they should redeem the first mortgagee after its period was over and take possession of the property and enjoy it for a period of 10 years from the 30 June 1911, till 30 June, 1921. The Zamindar again gave a third mortgage of the same property to the plaintiff before us on 16 December, 1910 for a large sum of money. The plaintiff finding that the defendants did not redeem Oppillamani on the due date himself redeemed Oppillamani and got possession of the properties into his hands on the 30 of August, 1911. Subsequently the defendants tendered the amount due under the first mortgage to the plaintiff as they were entitled to do treating him as one standing in the shoes of the first mortgagee on the, 24 June, 1913. The plaintiff declined to receive the money and be redeemed and declined to give possession of the mortgaged property to the defendants. Thereupon the defendants had the money paid into Court under Section 83 of the Transfer of Property Act and subsequently brought a suit for redemption. Although the plaintiff raised some objections to that suit a decree for redemption was passed against him. Finally, the property was redeemed from his possession on the 21st September, 1914, on which day the defendants seem to have got possession.

(2.) Now the present suit is by the plaintiff as the third mortgagee to redeem the defendants second mortgage evidenced by Ex. B. The contention that has prevailed against the plaintiff is that his suit is premature.

(3.) The way in which the Subordinate Judge has held that his suit is premature is that as it was on account of his obstruction that the defendants Were not able to get possession from the period when they tendered the money to him up to the period when they actually got possession under the suit he was bound to make good that period to the defendants and if you add that to the period of 10 years fixed under the document the time for redemption would come only in August, 1922. He therefore dismissed the suit as premature saying that as the plaintiff wrongfully persisted in keeping possession himself and in excluding defendants Nos. 1 and 2 thereby securing to himself an undue advantage at the expense of his opponents....I do not think the plaintiff can be permitted to claim the benefit of his own wrongful act to the prejudice of the defendants.