KADIR BIBI Vs. MVMAILAPPA PILLAI

JUDGEMENT

(1.) This appeal is concerned with the interpretation of Section 60 of the Transfer of Property Act.

(2.) On the 30 January, 1929 the tenth defendant executed a usufructuary mortgage of the land in suit in favour of the husband of the first defendant and the father of the second, third and fourth defendants to secure the sum of Rs. 7,000. The mortgagee died before the institution of the action. The mortgage deed provided that the mortgagor should have the right of redemption after the expiry of the period of three years and three months from the date of the deed. Obviously the three months were added to the three years in order that the right of redemption should fall within the fallow period. The deed further provided that if the mortgagor did not redeem on the date contemplated by the deed, he should have the right of redemption by paying the amount secured on the 30 Panguni (12 April) of any subsequent year. On the 10 July, 1942, the plaintiff purchased the equity of redemption and on the 13th March, 1943, he served upon the mortgagee a notice asserting his right to redeem the mortgage on the 30 Panguni. It was obviously his intention to redeem on that date. Unfortunately he had not then the money and he took no further steps until the 27th September, 1943, when he deposited the Rs. 7,000 in Court under Section 83 of the Transfer of Property Act. Notice of this deposit was served upon defendants 1 to 4 on the 9 October, 1943. The cultivation season had then commenced and they refused to accept the money. They maintained that under the terms of the deed of mortgage the redemption could not take place until the 12 April, next following. The Court accepted the contention and dismissed the plaintiff's application under Section 83 of the Transfer of Property Act.

(3.) On the 17 April, 1944, this suit was filed. The plaintiff asked for a decree for possession and for mesne profits from the 9 October, 1943. A decree in terms of the prayer was granted. Defendants 1 to 4 have appealed. They accept the decree in so far as it gives the plaintiff the right to redeem, but they say that the Subordinate Judge erred in awarding to him mesne profits prior to the date of the plaint.