1. Plaintiff sued for recovery of Rs. 200 alleged to be due under an instrument of mortgage (Exhibit A) by sale of the mortgaged property.
2. The District Munsif decreed for plaintiff, but the District Judge reversed the decree and dismissed the suit on the ground that Exhibit A evidenced a usufructuary mortgage, pure and simple, containing no covenant to repay the mortgage money, but with an express contract that plaintiff's only remedy should be to remain in possession if defendants failed to repay the mortgage money.
3. Against this decree the plaintiff instituted this second appeal on the ground that the District Judge misconstrued Exhibit A.
4. We think the appeal is well founded. Exhibit A is dated 8th October 1867. By it the defendant's father mortgaged certain lands for Rs. 200 to the plaintiff, and the contract between the parties is expressed as follows:
In lieu of interest on this sum of Rs. 200, you will, for three years from this year, raise any crops you like, including summer and season crops, pay Government assessment and enjoy the said lands. On the expiry of the term, I shall pay the said Rs. 200 and redeem the lands. If they are not redeemed in that manner, you will, till payment of the amount, enjoy them as under mortgage as mentioned above.
5. We think that these words contain a covenant to repay the mortgage money on a certain date, viz., on the 8th October 1870. If the words ' on the expiry of the term, I shall pay the said Rs. 200 and redeem the lands ' stood alone, there could be no question as to their meaning and effect, but the District Judge considers that the succeeding words indicate that the only covenant was that, in the event of non-payment, the plaintiff should continue to enjoy the lands. We do not think that this was the intention of the parties or is the true construction of the words. If that were the intention of the parties, it would have been easy to have stated it in appropriate language without the express contract, 'on the expiry of the term I shall pay the said Rs. 200.' This express contract is not, as the District Judge supposes, nullified by the words that follow it.
6. These latter words, no doubt, contain an agreement that until payment, the plaintiff shall remain in enjoyment of the land, but they do not say or imply that this shall be the plaintiff's only remedy in case of non-payment.
7. They, as well as the previous covenant, are for the benefit and protection of the mortgagee (plaintiff), but to give them the meaning suggested by the District Judge would be to nullify the previous express covenant to repay on a certain date and deprive the plaintiff of the benefit intended to be secured to him by those words.
8. The case is very similar to that decided lately by the Full Bench in Sivakami Ammal v. Gopala Savundram Ayyan I.L.R. 17 Mad. 131 . There the agreement was 'I shall pay you the said mortgage amount' on a certain date in 1883, and a further clause provided 'If I fail to pay you' on the said date, you shall receive 'it on the corresponding date of whatever year I may pay it.' The Full Bench held that the document clearly contained a covenant to pay and that a suit for sale therefore lay.
9. In the present case we are of opinion that Exhibit A contains not merely a usufructuary mortgage, but such a mortgage with an express covenant to repay the mortgage money on a certain date now long since past.
10. The contention of the respondents that the suit is barred under Article 132 of Schedule 2 of the Indian Limitation Act is untenable. The article applicable is No. 147, and the time allowed for sale is sixty years.
11. In the result we must reverse the decree of the District Judge and restore that of the District Munsif. The plaintiff must have his proper costs in all Courts.