Raman Nayar, J.
1. The appellants are the plaintiffs whose suit for the redemption of a usufructuary mortgage has been dismissed by the court below on the preliminary finding that it is premature.
2. Ext. B is a copy of the mortgage in question. It was executed in favour of the 1st defendant on 27-2-1121 M. E, (13-10-1945) by the karnavan and senior anandaravan of a Mana governed by the Travancore Malayala Brahmins' Act (Act III of 1106). Before its registration on 4-5-1121 (18-12-1945) the entire consideration of Rs. 7500/- was paid by the discharge of debts binding on the Mana and secured on its properties. Of the 22 items of properties comprised in the mortgage, possession of five items, of which the Mana was in actual possession, was made over to the 1st defendant. For the rest, the 1st defendant was required to evict the tenants in actual possession, filing suits, if necessary, within six months of the registration of the document & adding the expenses thereof to the mortgage money; and the mortgage was to run for a term of 12 years after he had reduced the properties in the hands of the tenants to his possession. (It would appear that one of the items of properties was held by a stranger on kanotn. He could not, in any event, have been evicted. But this seems to have been overlooked).
The 1st defendant accordingly proceeded to reduce the properties to his possession. He filed 13 suits for the purpose and within three years of the mortgage was able to obtain actual possession of all but five items of properties. Then, by reason of Travancore-Cochin Act VIII of 1950, which stayed the eviction of tenants he was prevented from proceeding further. By succeeding enactments the stay has been continued, and it is clear that there is no prospect of the 1st defendant ever being able to obtain actual possession of the remaining five items as contemplated by the mortgage deed.
3. By Ext. A dated 22-1-1952, the two plaintiffs bought the properties covered by the mortgage from the Mana (the sale deed in their favour being by all the members of the Mana), and on 23-8-1952 they came forward with the present suit for redemption claiming that they were entitled to ignore the term of 12 years specified in the mortgage deed because it was void for indefiniteness and also by reason of the fact that the mortgage itself was against the provisions of the Malayala Brahmin Act. The court below rejected this claim & upheld the 1st defendant's contention that the suit was premature. Accordingly it dismissed the suit without going into the many other contentions (such as an alleged agreement for sale in his favour) put forward by the 1st defendant.
4. It is clear that the parties intended that the mortgage should run for a minimum period of 12 years; and about that there is no vagueness or indefiniteness. It is equally clear that the starting point cannot be that contemplated in the document, namely, the date on which the 1st defendant reduces all the properties to his actual possession. For, that has now become impossible by reason of the supervening legislation, and a strict adherence to the letter of the deed would mean that the mortgage could never be redeemed.
That would be a clog on the equity of redemption and void on that account. Even without the supervening legislation, so far as the mortgage deed goes, there seems to be nothing to prevent the 1st defendant from indefinitely postponing entering into possession of one trifling item of property and thus making the whole mortgage irredeemable. No doubt the document contemplates that the 1st defendant should institute suits in ejectment within six months of the registration of the document, if that becomes necessary for the purpose of obtaining possession from the tenants.
But no provision is made anywhere as to what is to happen if the 1st defendant fails to get possession either by reason of his own default or by reason of his suit in ejectment being dismissed. In that event the mortgage would become irredeemable and for this reason alone we think that the term in the document that the 12 years is to run from the date on which the 1st defendant obtains possession of all the properties is bad and cannot be enforced. At the same time, as we have already observed, it is abundantly clear from the document that the parties to it contemplated a minimum term of 12 years, and in our view this term of 12 years should run from 27-2-1121 (13-10-1945), the date of the document.
We are unable to accept the argument advanced on behalf of the 1st defendant that the clause in the document requiring the 1st defendant to file the necessary suits within six months of its registration bespeaks an intention to allow that period as the maximum period for the purpose of the 1st defendant evicting the tenants and obtaining actual possession and that therefore the term of 12 years should run from the expiry of that period, in other words, from 4-11-1121 (18-6-1946).
5. We consider that for another reason also the term of 12 years can run only from the date of the document. That is because one of the terms of the contract, namely, that the 1st defendant should be in actual possession of the properties for a period of 12 years has been frustrated by subsequent legislation. The result is that the mortgage must run its stipulated term of 12 years from the date of its commencement without the subsequent starting point which the parties had in mind and which has now become Impossible. We are unable to agree that this term of 12 years must commence from 1124 when the supervening impossibility occurred, for the result of a frustration is to relieve the parties altogether from the obligation of the contract.
6. The argument based on the provisions of Sections 5 and 6 the Travancore Malayala Brahmin Act, that the mortgage itself was beyond the competence of the executants thereof and that the term of 12 years provided by the document is therefore bad, does not impress us in the first place the suit itself is for the redemption of that very mortgage (not for possession subject to the payment of the debts discharged by the 1st defendant) and it is rather strange that while seeking to redeem it the plaintiffs should object to one particular clause on the ground that the entire mortgage is bad.
That apart, it is settled law that an aliena-tion by a karnavan in excess of authority is not an entire nullity and that it is a transaction which the junior members of the' family can, at their choice, either affirm or avoid. Ext. A, the sale deed in favour of the plaintiffs by all the members of the Mana expressly states that the sale is subject to the mortgage in favour of the 1st defendant and is therefore an affirmance of that mortgage. It would have been a different matter if the sale deed had said that the Mana was not bound by the mortgage or if the mortgage had been altogether ignored. Clearly it is not open to the 1st defendant to question the mortgage.
7. The 12 years period from 13-10-1945, the date of the mortgage, has now expired (on 12-10-1957) and the mortgage has become redeemable. But it had not expired on 23-6-1952, the date of the institution of the suit. The suit was doubtless premature when it was brought, but since the mortgage has now become redeemable we think it would be unnecessary and unjust to drive the plaintiff to a separate suit. To mitigate hardships of this kind and shorten litigation, it is open to a court to take note of subsequent events in granting relief provided the substantive rights of the parties are unaffected.
But, in order to put the 1st defendant in the position he would have occupied had the plaintiffs brought the suit only after the expiry of the term of the mortgage, we think it proper that the plaintiffs should pay him the costs incurred by him so far.
8. In the result we allow the appeal, setaside the dismissal of the lower court and remand the suit to it for retrial on the remainingIssues. The plaintiffs will, Irrespective of theeventual result, bear the costs of this appeal andalso pay the 1st defendant the costs so far incurred by him, both in the suit and in the appeal. The plaintiff's costs in the suit and thecosts to be incurred hereafter will abide the resuit.