C N SUGANANTHA MUDALIAR Vs. SKKUPPUSWAMI CHETTY

JUDGEMENT

(1.) The appellant was the plaintiff in a suit on a mortgage executed on 5th February, 1935, by the first defendant. In July, 1937, the second defendant who is the contesting respondent here, purchased the hypotheca in Court auction under a money decree against the mortgagor-first defendant. Madras Act IV of 1938 came into force on the 22nd March, 1938. On this date the mortgagor who is admittedly an agriculturist was under a personal liability to discharge the debt. However no action was taken by the mortgagee to recover the debt from him. In 1940 the contesting respondent deposited two sums of Rs. 1,287 and Rs. 18 under Section 83 of the Transfer of Property Act claiming that this was all that was due under the mortgage having regard to the provision of Madras Act IV of 1938 and asking to redeem the mortgage. This petition was dismissed but it appears that the mortgagee was permitted to withdraw the amounts deposited and he has given credit to those amounts in the suit. The suit was filed claiming on the mortgage Rs. 569-11-4 which is the balance due after giving credit to the amounts deposited in Court. There was also a claim for another amount due on account which has been disallowed and there is no appeal with reference to that. It is established that the contesting respondent, the purchaser, is not an agriculturist.

(2.) Two contentions were raised in the Courts below, one was based on Section 4 (d) of Madras Act IV of 1938, the mortgagee contending that this mortgage was a debt contracted on the security of house property alone in a panchayat which was a union before the 26 August, 1930, while the respondent contended that the security comprised not merely house property but also an oil engine and a vacant site. The other contention related to the right of the contesting respondent to the relief, so far as his property is concerned, which would be due to the mortgagor on the footing that he was an agriculturist liable to discharge the debt as at the commencement of the Act.

(3.) The question whether this mortgage is a mortgage on the security of house property alone is not free from difficulty. It is common ground that the property is situated within a union. The schedule to the mortgage deed enumerates firstly a site measuring 32 yards into 44 yards on the northern side of which there is a tiled building and on the western side another tiled building and verandhas on both sides. It then proceeds to give details of the doors and door frames of these buildings, the site on which they are built and the garden appurtenant thereto and the wells within the site. Then follow the words " fixed in the said building, one 20 horse power Rapson Crude Oil Engine, one No. 1 huller, two sangli decorticator boxes and tank, shafting wheel belt, etc., relating to this." Finally the mortgage comprises another site situated to the east of the building already referred to measuring 46 yards into 70 yards surrounded by a wall and having on its western side a building with zinc sheet, wooden door, one pair of door frames, and two iron windows. The schedule concludes with the sentence, " the house bears the union No. 72."