THOTA CHINA SUBHA RAO Vs. MATTAPALLI RAJU

JUDGEMENT

(1.) These are two appeals from one judgment of the High Court of Madras, disposing of two appeals brought to it from two suits filed in the Court of Coconada. In the High Court the appeals were heard together. The material facts lie in a small compass. As the parties in the two suits and appeals are differently arrayed, it will be convenient to refer to them as the mortgagor, the mortgagees and the les Secs.

(2.) On January 2, 1914, the mortgagor acting for himself and as the guardian of his undivided minor son granted a mortgage of 51.20 acres of Inam lands along with other lands (which need not be hereafter referred to as they were later on disposed of by consent of parties) to secure a sum of Rs. 30,000 lent by the mortgagees. In respect of the suit lands it was a non- possessory mortgage. On November 27, 1915, he executed another mortgage with possession of the suit lands for Rs. 4,000, but as the lands were in the occupation of the lessees under a lease for 15 years from F. 1320 to 1331 (1910-11 to 1924-25) at an annual rent of Rs. 1,000, it was stipulated that the mortgagees were to receive the rent from the lessees and to take possession of the lands on the expiry of the lease. On July 31, 1916, there was a further mortgage of the suit lands along with two other properties to the mortgagees for Rs. 4,000. In that deed it was provided, inter alia, that on the expiry of the lease at the end of ff. 1834 (30 June, 1925), the mortgagees should take possession of the suit lands and pay a rent of Rs. 4,000 per annum from F. 1335. It was further provided that after payment of the revenue and taxes payable in respect of the lands, the balance should be applied first in reduction of the debt due under the mortgage of 1915, next in discharge of the principal and interest due under the bond of 1916 and thereafter towards the interest due under the first mortgage of 1914. The mortgagees were however to relinquish the lands irrespective of the terms of the lease, whenever the mortgagor paid the amounts due under all the mortgages.

(3.) As provided in the mortgage of 1915, the lessees paid the rent to the mortgagees till 1922 when the mortgagor alleging that the mortgages had all been discharged demanded rent from the lessees for himself. The lessees accordingly paid rent for the subssquent period to the mortgagor till the expiry of the leasts in June 1925. The lease was thereafter renewed by the mortgagor at first for one year and thereafter for 10 years by a registered document. In view of the repudiation of their rights, the mortgagees brought a suit against the lessees in 1926 to recover possassion and arrears of rent from 1922 till 1925 and for mesne profits thereafter till possession was given. They contended that the mortgages had not been fully dischicged and they were entitled to possession under the mortgages of 1915 and 1916. In this suit several interlocutory orders were passed under one of which the mortgagor was added as a party. The litigation appears to have taken an unduly long time and ultimately a preliminary decree for sale was passed on October 31, 1942. The mortgagees filed an appeal against that decree to the High Court.