SRINIVASA SWAMI AIYANGAR Vs. ATHMARAMA IYER

JUDGEMENT

(1.) WE think the decrees of the District Judge are right. The contention that the mortgage to Amba Boi never came into force is clearly unsustainable. The mortgage is evidenced by a registered mortgage deed and possession passed thereunder to Amba Boi. There is no provision in the deed that the mortgage should come into operation only on the payment of the whole sum of Rs. 65,000 which Amba Boi agreed to advance. The further contention that the mortgage even if it did come into operation no longer subsists, must also fail. The registered mortgage deed has not been cancelled by any registered instrument and evidence of any oral agreement to rescind it is shut out by Section 92 (4) of the Evidence Act. The conduct of the parties as shown by Exhibits B and II is relied upon as showing that they considered the mortgage was at an end. In other words an agreement to consider the mortgage at an end is sought to be inferred from Exhibits B and II. Proof of such an agreement is equally shut out by Section 92 (4) of the Evidence Act, vide Mayandi Chetti v. Oliver 22 M. 261. Then it is said that the circumstances justified the mortgagor in cancelling the mortgage and that he did in fact cancel it. Section 39 of the Contract Act is relied upon. It is necessary to consider whether Section 39 of the Contract Act would apply to a case like the present in view of the findings of the District Judge that the defendants did not make out either that the mortgagor repudiated the mortgage or would have been justified in doing so. The finding that there was no repudiation of the mortgage is attacked on the ground that the District Judge drew an adverse inference from the fact that the mortgagor was not examined though the mortgagor was in fact dead. Even if the District Judge had not fallen into this error his finding would clearly have been the same, as he bases it on the ground of insufficiency of proof and his finding that the evidence is not sufficient is correct in law. On the question of estoppel we also think that the judge is right. There remains only one other contention to be noticed. The lands which the plaintiff in each of their suits is seeking to recover are only portions of the property mortgaged to Amba Boi, and it is contended that the plaintiff is trying to split the mortgage. This, however, is not so, Amba Boi remained in possession of the mortgaged property for sometime and then lost possession. She was entitled to sue to recover the whole of the property which under the terms of the mortgage she was entitled to enjoy in lieu of interest for 15 years. But she was not bound to sue for possession of the whole or any part of the property and if she chose to be content with possession of a portion and to sue for that portion no one could compel her to sue for more than she wanted, though of course her action would, in no way, affect the liability of the whole of the property comprised in the mortgage for the money advanced by her under the mortgage. The plaintiff stands in the shoes of Amba Boi.

(2.) THE appeals fail and are dismissed with costs.