Govinda Menon, J.
1. This Miscellaneous Appeal has been referred to a Bench by one of us, Ramaswami, J., because, the question involved is bereft of authority as regards the application of Section 9-A of Madras Act IV of 1938.
2. The facts of the case are as follows : The first appellant is an assignee of certain mortgages from the first respondent and the application was by the mortgagors; to scale down the debt under Section 19-A of Act IV of 1938. The lower Court has scaled down the debt in a particular manner and hence this appeal.
3. Mr. A.V. Narayanaswami Aiyar for the appellant at the very first instance raised the question that Section 9-A would not be applicable to the present case because there has been a partition in the family of the mortgagees who were respondents 2 to 5 in the Court below and as such, as stated in the Explanation to Section 9-A, the Section would not apply. For this reliance has been placed upon the evidence of P.Ws. 1 to 3 of whom R.W. 1 was the second respondent, the mortgagee His case was that subsequent to the last mortgage, there was an oral partition in the family on 1st June, 1945 and lists, Exhibits B-9 to B-12 were prepared allotting the properties to respondents 2 to 5. R.W. 2 is the son-in-law of R.W. 1 who speaks to the attestation of Exhibits B-g to B-12. R.W. 3 is said to be the scribe of Exhibits B-g to B-12. He is a son of R.W. 1'S wife's brother and as such very closely related. The learned Subordinate Judge has discussed the evidence of these witnesses and his conclusion was that he was not impressed by them. It was also the evidence on the side of the respondents in the Court below that after the partition lease deeds were taken in the name of the sons of the first respondent. No lessee has been examined and none of the so-called lease deeds has seen the light of day. On the other hand, the Village Karnam examined as P.W. 1 categorically stated that respondents 2 to 5 in the lower Court were undivided and respondent No. 2 was enjoying all the properties and paying kist. P.W. 2 is the first petitioner and he also alleged that the partition is a myth. In our opinion sufficiently cogent reasons have been given by the learned Subordinate Judge for not acting upon the evidence of R. Ws. 1 to 3 and for relying upon the testimony of P.Ws. 1 and 2. Agreeing, therefore, with the opinion of the lower Court, we hold that the alleged partition has not been proved. There can, therefore, be no doubt about the applicability of Section 9-A to the facts of the present case.
4. The next question for consideration is the mode and the method in which the scaling down ought to be done; and for that purpose it is essential to state the circumstances a little more elaborately. Under Exhibit B-1, dated 16th May, 1919, the petitioners' undivided father executed a mortgage to the first respondent in the Court below for a sum of Rs. 3,500 by which the mortgagee was empowered to remain in possession of the properties and enjoy the usufruct in lieu of interest on the mortgage. A period of seven years was also fixed for redemption of the same. On the same date, under Exhibit B-2 the same person executed another usufructuary mortgage over other items of properties for Rs. 2,000 in favour of the same mortgagee containing covenants ad idem. While matters were in this state, on 19th June, 1929, under Exhibit B-3, the second respondent in the Court below took an assignment of the mortgages under Exhibits B-1 and B-2, aggregating to the amount of Rs. 5,500. Later on under Exhibit B-4, dated 26th July, 1929, the original mortgagor's sons executed another so-called usufructuary mortgage over properties dealt with under Exhibit B-2 for a sum of Rs. 200 more. In that document it is stated that the properties had already been held by the mortgagee under Exhibit B-2 and a further advance had been made by him of a sum of Rs. 200. It was stipulated that the original principal plus the additional sum paid would be repaid in Chitrai Kalavathi and the mortgage redeemed: The result is that under Exhibit B-4 there is, as it were, a merger of the mortgage under Exhibit B-2 with an additional payment of Rs. 200. On the same date, under Exhibit B-5 the same mortgagors executed another so-called usufructuary mortgage in favour of the same mortgagee over the properties covered by Exhibit B-1 with an additional payment of Rs. 300. The stipulations and contracts therein are identical with those contained in Exhibit B-4. This state of things continued for more than 15 years when under Exhibit B-6 dated 7th October, 1944, a further sum of Rs. 1,000 was advanced and a fresh mortgage was executed over the properties covered originally by Exhibits B-1 and B-5. The stipulations are practically the same as those contained in the earlier documents. The legal result of obtaining the execution of Exhibit B-6 is that Exhibit B-1 became merged in the fresh document, Exhibit B-6 with an additional payment of Rs. 1,000. Under Exhibit B-7, dated 29th May, 1946, there was a further advance of Rs. 1,000 and the mortgage was over the same properties covered by Exhibits B-6. On the same date under Exhibit B-8 the properties covered by Exhibit B-4 were again mortgaged with a further payment of Rs. 1,000.
5. The result of all these transactions is that the entire properties are now held under Exhibits B-7 and B-8. The application by the mortgagors was to scale down all the mortgages in accordance with the provisions of Section 9-A.
6. Mr. Narayanaswami Aiyar for the appellants' contends that if Sub-section (3) of Section 9-A has to be applied, then we must take Exhibits B-1 and B-2 as the starting point and consider that these mortgages would be wiped off only 30 years after the date, when they were executed, i.e., on 16th May, 1949, if that is so, then he urges that Exhibits B-4 and B-5 should be deemed to have taken effect only on the expiry of 30 years after Exhibits B-1 and B-2. The amounts due on Exhibits B-4 and B-5 would be wiped off only 30 years thereafter, that is, 26th July, 1959. He further contends that the starting point for scaling down the debt under Exhibits B-7 and B-8 would be 30 years from the date when Exhibits B-4 and B-5, get wiped off (i.e.) in 1959. Calculated in that way the mortgage cannot be scaled down until 1989.
7. It seems to us that this method of calculation cannot be accepted. There can be no doubt whatever that Exhibits B-1 and B-2 are usufructuary mortgages simpliciter and the subsequent mortgages, if construed as usufructuary mortgages, can only be consolidations of the previous documents with additional advances. It may also be possible to treat them as hypothecations. But on a reading of those documents, one is not able to find any agreement by which the mortgagee can sue for the mortgage money in default of payment by the mortgaggor. Such being the case, and especially since on the very face of those documents they are statedly usufructuary mortgages, we have to take them as nothing other than usufructuary mortgages.
8. The question then is how best are we to apply Section 9-A to the facts of the present case. Having given the matter our earnest consideration it seems to us that the interests of justice requires scaling down in the following manner:
Before Exhibits B-4 and B-5 were executed, Exhibits B-1 and B-2 have run a course of little more than ten years. Therefore the amount under Exhibits B-1 and B-2 has to be scaled down by deducting the proportionate principal that would be wiped off during the period that has lapsed, which sum can be arrived by dividing the principal sum by 30 and multiplying the result by the number of years that have elapsed. If that amount is deducted from the principal, then the balance of the principal will have to be added to the further advances under Exhibits B-4 and B-5. Roughly more than 1/3rd of the principal amounts under Exhibits B-1 and B-2 would have been wiped off by the time Exhibits B-4 and B-5 would have come into existence. Therefore a little less than 2/3rd principal under Exhibits B-1 and B-2 should be added on to the further advance under Exhibits B-4 and B-5; then consider Exhibits B-4 and B-5 as fresh documents and scale them down by taking the period of more than 15 years that would have elapsed before the execution of Exhibit B-6, for finding out the fraction. Deduct that proportion of the principal from the amounts under Exhibits B-4 and B-5 and then take the balance as the principal for Exhibits B-7 and B-8, with the fresh advance of Rs. 1,000 each. The principal for Exhibits B-7 and B-8 will therefore be 1000 plus what remains under the previous documents. From 1945 onwards the amount has to be deducted on the number of years that have elpased in proportion to the total of 30 years. In that way scaling down has to be effected.
9. It seems to us that that is the proper method and adopting that method the balance due to the mortgagee will have to be calculated. The respondent's advocate will file into Court a memo, of calculation on the above principle laid down by us before the decree is drafted. There will be no order as to costs in this appeal.
10. We are thankful to the Assistant Government Pleader for having assisted us in this case as amicus curiae.