MUTHUSAMI PILLAI Vs. ARASAYEE AMMAL

JUDGEMENT

(1.) The suit out of which this second appeal arises was instituted by the plaintiff for the recovery of possession of two items of immoveable property under the maintenance deed dated 13 February 1920 executed by defendants 1 and 2 in her favour. She was the widow of one Muruga Pillai who died undivided from defendants 1 and 2. The deed purports to be in satisfaction of her right to maintenance and residence which she had against them. In and by the said deed defendants 1 and 2 purport to give her the suit properties which consist of 50 cents of nanja lands, 7 1/2 cents of dry land, a house and some jewels. She was directed to enjoy the said, property for her life. The deed recites that the said properties were subject to a mortgage along with other properties for a sum of Rs. 4,500 in favour of one Narasimha Iyer under Ex. 2, a usufructuary mortgage deed dated 14 August 1919, and that until they redeem the said mortgage and give her possession of the same, they agree to give her every year in respect of income of the said nanja land 8 kalams of samba paddy and 7 kalams of kar paddy and for the income of the dry land which is a cocoanut tope Rs. 20 every year. There is also a covenant for assurance that besides the mortgage mentioned in the said document there is no other encumbrance on the property. As a matter of fact besides the said usufructuary mortgage there were two other encumbrances On the said property, namely a simple mortgage dated 24 February 1906 on item 1 in the plaint and a security bond Ex. 4 dated 4 September 1919 hypothecating the said property to the Sub-Court of Trichinopoly of items 1 and 2 in the plaint. In execution of a simple money decree against defendants 1 and 2 the suit properties and other properties were brought to sale and purchased by defendant 4 on 15 June 1921 and the sale was confirmed on 26 July 1921. The sale was subject to the encumbrances Exs. 2 and 4 existing on the property and also the rights of the plaintiff under the maintenance deed dated 13 February 1920. The sale certificate mentions that the auction sale was held subject to the following: (1) Othi mortgage in favour of one Narasimha Iyer for Rs. 4,500 on 14 August 1919 in respect of items 1 to 4 herein, (2) security bond executed in favour of the Sub-Court, Trichinopoly, in O.S. No. 43/17 for Rs. 2,000, (3) maintenance deed dated 13 February 1920 in favour of one Arasayee Ammal on the following properties : Item 2, 1 acre 8 cents out of this southern side 50 cents. Item 4, 15 cents, out of this northern side 7 1/2 cents. Item 5, 10 cents out of this same portion.

(2.) It is admitted that defendant 4 was benamidar for defendant 3, so that in this second appeal the interests of defendants 3 and 4 are identical and defendant 3 is the appellant in the second appeal. Subsequent to the purchase in Court auction defendant 4 sold portions of the property purchased under Exs. F and C for discharging the encumbrance on the suit properties and in fact the mortgage deed dated February 1906 and the usufructuary mortgage deed dated 1919 were actually discharged. The present suit is filed as aforesaid by the plaintiff to recover possession of the property from defendants 3 and 4. The main defence is that she is not entitled to recover possession without paying the amount which went in discharge of the encumbrance. The main question therefore in this appeal is whether defendants 3 and 4 are entitled to insist upon payment of the said amounts by the plaintiff. Both the lower Courts have negatived the claim and gave a decree for the plaintiff. Defendant 3 has preferred this second appeal. Defendant 3's claim for the entire amount paid in discharge of the mortgages is obviously unsustainable. The only relief he can claim is that as the suit properties which the plaintiff claims as well as other properties purchased by him are subject to a common charge he is entitled to get from the plaintiff an amount proportionate to the value of the suit properties. The question is whether he is entitled to even this relief of contribution.

(3.) On a true construction of the deed dated 13 February 1920, it appears to me that there was a conveyance of a life interest in favour of the plaintiff by defendants 1 and 2 and there is a covenant on their part to discharge the encumbrances subsisting on the property themselves. The result of the said agreement is that so far as the items conveyed to the plaintiff are concerned they stand exonerated from the liability on the mortgage and the burden of the mortgage is entirely thrown on the remaining items of the property under the mortgage retained by defendants 1 and 2. This would be a contract to the contrary between defendants 1 and 2, and the plaintiff within the meaning of Section 82, T.P. Act. The view taken in Ramabhadrachar V/s. Srinivasa Ayyangar (1901) 24 Mad 85 that the expression "contract to the contrary" means only a contract between the mortgagor and the mortgagee and that taken in Kunchithapatham Pillai V/s. Palamalai Pillai 1918 32 MLJ 347 that a covenant between a mortgagor and a purchaser of the equity of redemption would not be a contract to the contrary is no longer tenable after the decision of the Privy Council in Ganesh Lal v. Charan Singh 1930 52 All 358. In Barea Saheb V/s. Krishna Boyan 1936 Mad 898 I have held that the said Privy Council decision establishes that: Expression contract to the contrary in the section might include a contract between mortgagor and purchaser of equity of redemption and can be enforced by the mortgagor or a subsequent purchaser of the equity of redemption of another portion of the mortgaged pro-petty if the benefit of the contract has been assigned to him.