IMMANI SESHAYYA Vs. DRONAMRAJU LAKSHMINARASIMHA RAO PANTULU (DEAD)

JUDGEMENT

(1.) This is a Letters Patent Appeal from the judgment of Mr. Justice Devadoss and raises an important question in regard to the effect of a certain transaction evidenced by two documents, dated the 2nd May, 1865. The two deeds may be treated as practically one and the purport of the arrangement is shortly this. A sum of Rs. 2,200 is advanced to the borrower, who agrees to pay an equal sum as interest thereon. The lender is put in possession of certain lands belonging to the borrower and as between the parties the annual profits are estimated to be Rs. 240. The lender is required annually to pay Rs. 100 for the revenue and village expenses, appropriate Rs. 80 towards the mortgage debt and pay the balance of Rs. 60 to the debtor. It is further provided that after the debt is discharged in 55 years in the manner set forth, the creditor is to surrender possession of the land to the borrower. The only remaining material clause is, that if the lender fails to pay Rs. 60, he shall be bound to relinquish a part of the land in proportion to that sum. It is evident that the term was fixed as 55 years, because at the rate of Rs. 80 it would take that period to discharge the total sum of Rs. 4,400. The right, title and interest of the borrower in the lands in question were sold in Court auction and the plaintiff having become the purchaser, the sale in his favour was confirmed on the 1 March, 1882. It is not denied that since then the annual payment of Rs. 60 was never made to him. I may observe, that it is alleged on behalf of the defence that notwithstanding the Court sale, the lender continued to pay Rs. 60 to the original debtor. But this is not material, as it is admitted that the lender had notice of the Court sale and the alleged payments may be therefore ignored. The plaintiff has treated the transaction as a. mortgage and has filed the suit, from which this appeal arises, as one for redemption. The suit was filed in 1915. It was contended that it was premature as the term of 55 years would expire only in 1920. The District Munsif in whose Court it was filed disposed of the suit in 1919.

(2.) The appeal to the Subordinate Judge was decided in 1921. On the expiry of the term, that is, in 1920, the defendant gave up possession of the land to the plaintiff. The question, therefore, whether the suit was premature or not, is not of much importance in so far as the action relates to the possession of the property.

(3.) The same point, however, arises in another form, when did the debt become discharged? For, not only does the plaintiff contend that his right to redeem accrued when the debt; was paid off, irrespective of the period fixed, but he further urges that the defendant became liable from that moment to account for the profits from the lands. He contends, in short, that the debt became discharged long before the expiry of 55 years, the period fixed. He maintains that the defendant, who, contrary to the terms of the arrangement, retained in his hands the sum of Rs. 60 was bound to apply that sum in reduction of the mortgage debt. If that was done, the debt would, of course, have been discharged long before 1920. The question to decide is, was the defendant so bound?