1. The terms of Ex. A, the mortgage we have to construe, are given in the judgment of my learned brother, which I have had the advantage of reading ; they need not be repeated. Shortly the mortgage is usufructuary with conditions barring redemption (1) within five years and (2) after twenty years from its date. If there were only the second of these conditions, the case would be covered by the decision of the Full Bench in Kandula Venkiah v. Donga Pallayya I.L.R. (1918) Mad. 589 the clog constituted by that condition on the equity of redemption being disregarded. The question is then whether, as defendants contend, the inclusion of the first condition deprives the document of its character as an usufructuary mortgage. As, we hold it does not do so, it is not necessary to consider whether the second condition must receive effect as, one of the terms of the mortgage with regard to Section 98 of the Transfer of Property Act.
2. If the condition postponing repayment of the mortgage money is regarded as intended for the benefit of the mortgagor, it will suspend only his liability to be sued, not his right to redeem before the date fixed, vide Rose Ammal v. Rajarathna Ammal I.L.R. (1898) Mad. 33 and it clearly cannot affect the usufructuary character of the mortgage, so as to attract the operation of Section 98. Here however it must rather be regarded with reference to the possessory character of the mortgage, as intended for the benefit of the mortgagee. No authority directly relevant in such a ease has been cited. But the language of Section 62 entails that postponement of the right to redeem to a date fixed in one way, with reference to repayment of the mortgage money from the profits, is not inconsistent with the usufructuary character of the mortgage ; and we have been shown no reason why such postponement to a date fixed otherwise, by actual specification should be so. In fact the simplest and the sufficient ground of decision is that the definition of a usufructuary mortgage in Section 58(d) refers to payment of the mortgage money in connection only with the mortgagee's right to retain possession and includes nothing inconsistent with its application to mortgages, containing a condition for mere postponement of the right to o repay.
3. The conclusion must therefore be in plaintiff's favour and he must have a decree for redemption as proposed by the District Munsif, the Respondent being at liberty to draw the money, which, we understand, is in deposit in Lower Court.
4. The appeal is allowed with costs throughout.
5. The plaintiff is the appellant. The suit is for redemption of a mortgage (Ex. I dated 3rd February 1893,). The District Munsif decreed the suit, but on appeal, the learned District Judge allowed the appeal and dismissed the suit. Hence this Second Appeal.
6. The portion of Ex. I material for the purpose of this case runs as follows: - 'We have borrowed from you Rs. 1000/-we have put you in possession of the 8 acres 25 cents of land comprising... towards the yearly interest of of Rs. 80 at 8 per cent, and the taxes payable to Sircar. Whatever might be the profits received from the said lands in every year they shall be taken in payment of interest aforesaid and the taxes on the land. You shall enjoy the profits from the said lands without having anything to do with the increase or decrease. You need not receive the said principal sum of Rs. 1000 even though we should pay you the same, within five years from the current year Nandana. It is settled that in case we should pay afterwards at one and the same time the said one thousand rupees on the 15th of Chitrai Sudham of any year, you should give up our land to us. If the principal sum be not paid within 20 years from this date you shall treat and enjoy these lands as having been sold to you absolutely.'
7. The learned District Judge held that this mortgage is an anomalous mortgage as 'the circumstance that an arbitrary term of five years has been fixed within which the mortgagor may not redeem is sufficient to take this mortgage out of the category of the usufructuary mortgages.' It is clear that but for the special term he relies on, the mortgage would be, in his opinion, a usufructuary mortgage and I agree with him so far. The question therefore arises whether on account of the addition of a terra providing for frredeemability within five years the mortgage ceases to be usufructuary. No authority has been cited in support of the learned judge's view and it seems to me that the addition of other terms not inconsistent with the main feature of the transaction does not destroy its character. In my opinion the mortgage is merely a usufructuary mortgage with a clog on the equity of redemption cf. the first alternative of Spencer, J. in Srinivasa Iyengar v. Radakrishna Pillai 26 M.L.J. 41. I do not think there is a combination of two kinds of mortgages in this case. There is no covenant to pay as in Srinivasa Iyengar v. Radakrishna Pillai 26 M.L.J. 41 (according to the view of Sadasiva Iyer, J. and hence no simple mortgage. Nor is there a mortgage by conditional sale. The last clause which provides for an outright sale on non-payment for twenty years cannot make the transaction a mortgage by conditional sale) Vide the observations of Sadasiva Aiyar, J. in Srinivasa Iyengar v. Radakrishna Pillai 26 M.L.J. 41 (last seven lines) and Kumara-swamy Sastri, J. in Hankeen Patte Muhammad v. Shaik Davood 29 M.L.J. 525 with whith whtch I agree. For the same reasons there is no English mortgage.
8. The case in Hakeem Patte Muhammad v. Shaik Davood 29 M.L.J. 525 is clearly distinguishable. In that case the essential elements of all the unmixed kinds of mortgage were wanting (see Spencer, J. at p. 1012 and Kumaraswami Sastri, J. at p. 1016.)
9. In my opinion the document is not an anomalous mortgage and the suit for redemption ought to have been decreed (See also Kandalu Venkiah v. Donga Pallayya I.L.R. (1920) Mad. 589 and Verayya v. Venkata I.L.R. (1888) Mad. 403.)
10. In the View taken by me, the more difficult question what is the exact operation of Section 98, i.e. whether is should operate subject to Section 60 does not arise.
11. The appeal will be allowed with costs throughout. I agree with the order proposed by my learned brother.