AGA MUHAMMADALLY BEG SAHIB Vs. CHENDRAGIRI VENKATAPPAYYA

JUDGEMENT

(1.) Plaintiff, appellant sues to redeem an usufructuary mortgage executed in 1902 (Exhibit B). Under that document the property was put in possession of the mortgagees, and it was stipulated that the mortgage amount should be worked off by applying the usufruct, Rs. 20 a year, in discharge, firstly of the principal and secondly of the interest, A calculation shows that the mortgage amount would be discharged in about 37 years. There is another stipulation that if payment of what is then due be made on 12-1-12 the property should be handed over to the mortgagor but if such payment were not made the mortgagee s possession was to continue on the same terms as before. The payment was not made on 12-1-12 and this suit for redemption was brought in 1916 and has been dismissed as premature.

(2.) It is contended for appellant that the stipulation for payment in January 1912 is a covenant for payment, and that consequently the mortgagors are entitled to redeem after the time fixed for payment had expired. A perusal of the document shows that there is no personal covenant to pay and that the stipulation as to payment in 1912 is a provision inserted for the benefit of the mortgagors. They failed to avail themselves of the concession allowed, and it is expressly stipulated that in default, the original covenant is to continue in force. On this ground appellant s contention cannot be supported.

(3.) It is next argued that the provision in the deed that the mortgagees are to remain in possession until the mortgage money is worked off is a clog on the quite of redemption, and that effect cannot be given to such a provision. In support of this proposition appellant s counsel relies on three cases Sarbdawan Singh v. Bijai Singh (1914) I.L.R. 36 All. 551, Srinivasa Iyengar v. Radhakrishna Pillai (1914) I.L.R. 38 Mad. 667 and Chekkangal Govinda Menon v. Chekkengal Chathu Menon (1914) 22 I.C. 907. The first of these cases laid down that the conditions fettering the equity of redemption in that particular case could not be enforced but the learned Judges observed that it is impossible to lay down a hard and fast rule as to what should and what should not be regarded as an improper restraint on the right of redemption. In Srinivasa ly angary. Radhakrishna Pillai (1914) I.L.R. 38 Mad. 667, a stipulation that the mortgage was to work itself out as a sale for the principal amount, if the mortgage amount was not paid on the stipulated date, was held to be unenforceable and that the right of redemption remained. The same two Judges in Chahhangal Govinda Menon v. Chakkangal Chathu Menon (1913) 21 I.C. 907, held that a stipulation that the property should only be redeemed during certain months of each year was unenforceable, but in that case also there was a personal covenant to pay and the provisions of Section 60 of the Transfer of Property Act (Act IV of 1882) applied. On the other hand postponement of redemption for long periods has been allowed by the Courts, i.e., 26 years in Rambakan Singh v. Ramkar Singh (1910) 10 I.C. 248, 58 years in Ram Prasad v. Jagrup (1912) 10 A.L.J. 157, and 59 years in Dulari v. Lal Bahadur Singh (1915) 28. I.C. 129. Apart from the question of whether the onerous nature of the restriction is such as to justify a court in refusing to enforce it, there is in this case a further point in respondents favour, i.e., that a covenant for the mortgage money to be worked out by the usufruct is one that is not uncommon in the country and the validity of such a covenant has been recognised in Tirugnana Sambanda Pandara Sannadhi v. Naliatambi (1892) I.L.R. 16 M. 486, and in Gunnam Dorayya v. Vadapalli Ayyanacharyulu . In the latter case to which one of the Judges in Srinivasa Aiyangar v. Radhakrishna Pillai (1913) I.L.R. 38 M. 667, was a party, it was expressly laid down, that such a covenant is not illegal according to Indian Law. In fact such a covenant is expressly recognised in Section 62 Transfer of Property Act (IV of 1882). The contention that the provisions of Section 60 of that Act must be read apart from Section 62, and that the right to redeem accrues when the money has become payable does not help the appellant, for it was held in Tirugnana Sambanda Pandara Sannadhi v. Naliatambi (1892) I.L.R. 16 M. 486, that in a mortgage like the present redemption could not be sought before the mortgage was worked out, applying the general principle that the right to redeem and the right to foreclosure are usually co- extensive. It was held in Hussain Begum v. Collector of Cawnpur (1907) I.L.R. 29 A. 471 at 474 s.c. 4 A.C.J. 375 at 385, that the principal money only becomes payable when the payment becomes obligatory on the mortgagor. That this construction is right in so far as the obligation refers to a debt being payable would appear from the fact that in a mortgage there may be no personal liability on the part of the borrower although primu facie a loan involves a personal liability (Vide Ram Narayan Singh v. Adindranath Mukerjee (1911) 32 M.L.J. 39) and if there is no personal covenant there is no liability to pay and the money has not become payable. The conditions of the suit contract are such that no personal liability arises and therefore it cannot be said, as contended before us, that the money has become payable as soon as the contract was signed. In this particular case the money cannot become payable-as there is no personal covenant to pay; Section 62 of the T.P. Act must be applied and the mortgagors are only entitled to recover possession when the money is paid according to the terms of the contract. I may refer also to the decision of the Privy Council in Bakthawur Begam v. Hussain Khanum (1914) I.L.R. 36 A. 195, where it was held that the right to recover possession accrued when the mortgage debt was actually satisfied. I do not think this view of mine is opposed to Rose Ammal v. Rajaratnam Ammal (1898) I.L.R. 23 M. 33, as in that case there was a personal convenant to pay. I would therefore hold that the plaintiff s suit is premature.