RAMAKRISHNA KUKKILAYA Vs. NEKKER KUPPANNA ALIAS RAGHAVENDRA RAO

JUDGEMENT

(1.) This suit was brought for the purpose of redeeming a usufructuary mortgage of the year 1867. The mortgagor remained in possession under a lease until 1882 when the mortgagee got into possession. The mortgagee s representatives pleaded in defence of this suit that the plaintiffs were bound to pay off two simple motgages of the years 1873 and 1877 and a decree of 1882 before they could be allowed to redeem the prior usufructuary mortgage. On the points of law arising out of this contention the District Judge, disagreeing with the opinion of the District Munsif, has decided in the defendants favour.

(2.) Now it is clear that by the Limitation Act in force at the institution of this suit if the mortgagees had sued at that time to recover what was due to them on the footing of those simple mortgages their suit would have been time-barred, whereas if the mortgagors sued to redeem them, their suit would not be out of time.

(3.) The question then is whether the defendants can set them up in bar of the plaintiff s right of redemption. So far as this presidency is concerned, it must be taken as settled law that a mortgagee having more than one mortgage on the same property can treat each as a separate cause of action and can bring a suit for the recovery of his debt by sale of the mortgaged property on a puisne mortgage subject to his intesest in a prior mortgage (vide Subramania v. Balasubramania (1915) I.L.R. 38 Mad. 927 : 29 M.L.J. 195, and Radhakrishna Iyer v. Muthusawmy Sholagan (1908) I.L.R 31 Mad. 530, although it was held in Dorasami v. Venkcataseshayyar (1808) I.L.R. 25 Mad. 108 : 11 M.L.J. 373, that he could not get a sale on the earlier mortgage subject to the later mortgage. Yet when the mortgagor comes to Court and applies for redemption, it has been declared on the strength of Section 61 of the Transfer of Property Act that all the mortgages over the same property and in favour of one and the same person must be simultaneously redeemed. Vide Dorasami v. Venkataseshayyar (1915) I.L.R. 25 M. 108 at page 115 and Balasubramania Nadar v. Sivaguru Asari , approved of by Sadasiva Aiyar, J. in Subramania v. Balasubramania (1915) I.L.R. 38 M. 927, and Ramaswami Ayyar v. Vythinatha Ayyar (1903) I.L.R. 26 M. 760 at 776, and Meloth Kannan Nair v. Kodath Kammaran Nair (1918) 1 L.W. 102 at page 105.