1. The suit out of which this appeal has arisen was instituted by one P. Sama Row (now 1st respondent) against Ranga Row, his son Janakirama (a minor) and brother Ragava Row (defendants Nos. 1, 2 and 3 respectively) as executants of the mortgage bond A (dated 10th July 1890), the other defendants in the suit being Linga Reddi (the present appellant) and three others holding prior mortgages over portions of the property mortgaged to plaintiff under A.
2. Plaintiff's case was that of the Rs. 4,500 for which A was executed, Rs. 3,000 were left with him for redemption of the prior mortgages, and for payment to other creditors of defendants Nos. 1 to 3, but that his attempts to discharge the prior mortgage debts were frustrated by the machinations of the 4th defendant (now appellant) who induced defendants Nos. 1 to 3 to execute to himself on the 16th September 1890 a usufructuary mortgage of the property for Rupees 2,750 and to put him in possession of the property. Hence plaintiff's suit to recover from defendants Nos. 1 to 3 and on the responsibility of the property mortgaged to plaintiff under As sum of Rs. 2,256 paid by him to those defendants and certain creditors of theirs, up to 10th October 1890, with Rs. 450 as damages. Defendants Nos. 4 to 7 were included as defendants in consequence of their being in possession of portions, of the properties.
3. First defendant's plea was that it was owing to plaintiff's failure to pay off the other mortgages that is obliged to make other arrangements. Second and third defendants also pleaded adversely to the plaintiff, but it is unnecessary to consider their pleas for the purpose of this appeal.
4. Fourth defendant pleaded that plaintiff had no right to recover the money from the plaint property, as Exhibit A contained no pledge of the property. He also denied tender to him as alleged by the plaintiff. He further denied all knowledge of the payments alleged to have been made by plaintiff to and on behalf of defendants Nos. 1 to 3. He also denied the alleged collusion between himself and those defendants and insisted on his right as prior mortgagee for a sum of Rs. 1,250 and also under the usufructuary mortgage bond of September 1890 for the further sum of Rs. 2,750.
5. It is unnecessary to state the pleas of the other defendants as the present appeal is by 4th defendant alone.
6. The District Judge has found that a sum of Rs. 2,181 was advanced by plaintiff to defendants Nos. 1 to 3 and is a valid mortgage debt, but that of the property mortgaged under A a portion had previously been sold to 6th defendant under Exhibit XI and that the land so sold must be excluded from liability for the debt due to plaintiff. As for the damages claimed, the District Judge held interest at 10 per cent, per annum on the amount found to have been paid by plaintiff to be a sufficient award. He therefore passed a decree against 1st and 3rd defendants personally and against their shares of the mortgaged property for Rs. 2181, with interest thereon as above, 2nd defendant's share being held liable only for a portion of the deft and that only in case it is not satisfied out of the 1st and 3rd defendants' shares. Fourth defendant has been held jointly liable with 1st and 3rd defendants for plaintiff's costs on the amount decreed to plaintiff, because the judge found the litigation to be due to the intervention of 4th defendant who 'induced 1st and 3rd defendants to abandon their mortgage to plaintiff and give him one instead.'
7. The present appeal is, as already observed, by 4th defendant, the respondents being plaintiff and defendants Nos. 1 to 3.
8. The points urged at the hearing are:--(1) that as a usufructuary mortgagee, plaintiff is not entitled to sue for sale of the property; (2) that the suit is premature as under A the money is not repayable till after the expiration of three years; (3) that plaintiff is entitled to sue only for possession of the property and redemption of prior mortgages; (4) that Section 68 of the Transfer of Property Act is not applicable; (5) that the amount claimed is excessive; (6) that the damages cannot be made a charge on the property.
9. It is true that Exhibit A allows three years for payment of the money, but the finding is that owing to appellants' machinations the plaintiff was unable to get possession of the property. Section 68 of the Transfer of Property Act provides that the mortgagee has a right to sue for the money, inter alia, where the mortgagee being entitled to possession of the property, the mortgagor fails to deliver possession to him or to secure the possession of it to him. No doubt in the present case the money for redemption was left with the plaintiff and the mortgagor had to take no active part in placing him in possession of the property and consequently the case is not one coming within the letter of the section, but there can be no doubt it is within the spirit of the rule contained therein; and as it was owing to the combined action of the mortgagors and appellant that the respondent (plaintiff) was unable to get possession of the property, the latter must be allowed to elect to sue at once for the money instead of for possession of the land, though no doubt a suit for possession was also open to him. I would therefore disallow the objections Nos. 1 to 4.
10. As to the 5th objection the judge's finding is supported by Exhibit L and the receipts referred to in para. 13 of the judgment.
11. As to the last objection, under the mortgage A plaintiff was entitled to the usufruct of the land in lieu of interest at 10 per cent per annum. It is this same interest that is awarded as damages. I think it has been rightly made a charge upon, the property. As remarked by Romer, J. in the recent case of Cradock v. The Scottish President Institution 69 L. T. J. 380 at p. 382,--to constitute a charge in equity by deed or writing, it is not necessary that any general words of charge should be used; It is sufficient if the court can fairly gather from the instrument an intention by the parties that the property therein referred to should constitute a security.
12. I would dismiss this appeal with costs.
13. Objection has been taken on behalf of 1st respondent (plaintiff), under Section 561 of the Code of Civil Procedure, to the part of the decree which directs the property to be sold subject to the mortgages evidenced by Exhibits IV, V, and VI. As these mortgages are of date prior to that under which this suit has been brought, the judge's decree is correct. The mere fact of the amounts due under these mortgages being included in the mortgage bond VII executed to 4th defendant by defendants Nos. 1 and 3 subsequently to the execution of A is no reason for holding that A is unaffected by them.
14. I would therefore dismiss 1st respondent's objections also with costs.
Muthusami Aiyar, J.
15. I agree.