MAILA RAI Vs. DERAPPA

JUDGEMENT

(1.) This is an appeal against the decision of Phillips, J., reversing the decree of both the Lower Courts and dismissing the suit to redeem.

(2.) The facts are shortly these. A deed of mortgage executed in 1844 was sought to be redeemed. The deed which is said to be a usufructuary mortgage deed, dated the 11 of December, i844, begins by stating that the mortgagor on account of his necessity usufructuarily mortgaged to the mortgagee for 248 varahas the property described in the document, The material portion is as follows: Thus in total I received from you 248 varahas as detailed above and delivered this day to your possession the entire land, bagayat house, cow-pen and also out- house bearing the said beriz and I have also given to you one decision obtained by me in respect of the said land and also one yadast executed by Shama Rao, Amin of Uppinangadi Taluk Munsiff's Court, for having delivered the said land to me. In future you alone shall pay the sirkar tirva to Government and enjoy the said land, bagayat house, cow-pen and out-house lying within the boundaries mentioned in the decision. You shall have no reason. to claim interest for the amount and I shall have no reason to claim any profits out of the said land. I shall pay the consideration amount of 248 varahas to you in one lump sum after a period of twenty-five years and within a period of thirty years from this day and get back from you the said land, bagayat house, cow-pen and out-house, and also the two documents, viz., decision and yadast given to you. If I fail to pay the amount and get back the land, etc., within the period mentioned above, you shall get the warg of the said land entered in your name, plant therein trees, etc., effect improvements therein and shall enjoy the same from generation to generation. I and my descendants shall have no interest therein. To this effect is the usufructuary mortgage deed of land executed out of my free will.

(3.) The word in the original is "Moulya" or price. This mortgage was not redeemed within the period specified and a suit was filed in 1920 for redemption. Phillips, J., held that the case came within the ruling Thumbusawmy Moodelly V/s. Hossain Rowthen (1875) L.R. 2 I.A. 241 : I.L.R. 1 M. 1 (P.C.) which was followed in Bapirazu V/s. Kamwazu (1881) I.L.R. 3 M. 26 and Ramasami Sastrigal V/s. Samiyappanaykan (1881) I.L.R. 4 M. 179 (F.B.) The learned Judge observes: It seems to be immaterial whether the document purports to be a sale with a condition of re-sale or whether it purports to be a mortgage with a condition that on failure to pay the mortgage money the property shall pass to the mortgagee. If the document was executed prior to 1858 when first the above principle of law began to be modified, effect must be given to the intention of the parties.