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Thirupathi (Minor by Mother and Next Friend 2nd Appellant) and anr. Vs. Rajagopala Naidu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1956)1MLJ1
AppellantThirupathi (Minor by Mother and Next Friend 2nd Appellant) and anr.
RespondentRajagopala Naidu and ors.
Cases ReferredSrinivasaraghava Aiyengar v. Narasimha Mudaliar
Excerpt:
- - 3,000, exhibit a-i, dated 29th november, 1942. the document stated that the defendant-mortgagor put the plaintiff-mortgagee in possession as the mortgage was a usufructuary one and the plaintiff was allowed to take the usufruct towards the interest on the mortgage money and enjoy the same. the present suit is for recovery of rs 3000 being the principal money due on the mortgage, as well as a certain sum, being the rent due during part of the period when the mortgagor as lessee was in possession......that decision is correct.2. section 9-a as it stands does not contemplate by its intendment a suit for sale. that section can come into play only where in the case of a usufructuary mortgage, the mortgagor seeks to redeem, because sub-section (2) begins by saying:the mortgagor shall be entitled to redeem the whole of the property mortgaged....it certainly has no effect where, as in the present case, there is a combination of a simple and a usufructuary mortgage and the mortgagee takes advantage of the covenant by the mortgagor to pay the sum. his suit can be based only on foot that the mortgage in question in this respect can be construed as a simple mortgage. having perused the entire section it seems to me that it cannot be applied to a case where in a composite mortgage the.....
Judgment:

Govinda Menon, J.

1. The point in issue in this Second Appeal, is technical and devoid of direct authority. The plaintiff sues for recovery of a sum of money due on a mortgage for Rs. 3,000, Exhibit A-I, dated 29th November, 1942. The document stated that the defendant-mortgagor put the plaintiff-mortgagee in possession as the mortgage was a usufructuary one and the plaintiff was allowed to take the usufruct towards the interest on the mortgage money and enjoy the same. The mortgage was redeemable only after a lapse of five years. There was an oral lease-back to the mortgagor which ended on 29th November, 1946 and the plaintiff was put back in possession of the property. The present suit is for recovery of Rs 3000 being the principal money due on the mortgage, as well as a certain sum, being the rent due during part of the period when the mortgagor as lessee was in possession. So far as the Second Appeal is concerned, the only question is whether the plaintiff is entitled to get the entire principal sum of Rs. 3000 or whether the provisions of Section 9-A of the Madras Agriculturists Relief Act is applicable. Applying Sub-section (3) of Section 9-A the principal amount has been scaled down and the plaintiff was given a preliminary decree for sale for a sum of Rs. 2,283-5-4. The question in Second Appeal is whether that decision is correct.

2. Section 9-A as it stands does not contemplate by its intendment a suit for sale. That section can come into play only where in the case of a usufructuary mortgage, the mortgagor seeks to redeem, because Sub-section (2) begins by saying:

The mortgagor shall be entitled to redeem the whole of the property mortgaged....

It certainly has no effect where, as in the present case, there is a combination of a simple and a usufructuary mortgage and the mortgagee takes advantage of the covenant by the mortgagor to pay the sum. His suit can be based only on foot that the mortgage in question in this respect can be construed as a simple mortgage. Having perused the entire section it seems to me that it cannot be applied to a case where in a composite mortgage the mortgagee files a suit for realisation of the principal sum by sale of the mortgaged property. This section has been understood in this way by Subba Rao, J., in Srinivasaraghava Aiyengar v. Narasimha Mudaliar : AIR1952Mad292 . Though the facts of the case are different, there is one sentence in the learned Judge's judgment where he says as follows:

The scheme of the section leaves no doubt in my mind that it is intended only to apply when the mortgagor seeks to redeem the mortgage.

3. In these circumstances, what we have to consider is whether it is open to the mortgagor by a written statement, without filing a fresh suit, to invoke the provisions of Section 9-A for the amount being scaled down. In my view, unless the mortgagor tenders the money or deposits the sum in Court, he is not exercising the right to redeem. A mere allegation in a written statement that under Section 9-A of the Act the mortgagor is entitled to scale down the amount would not amount to the exercising of the right of redemption. Section 60 of the Transfer of Property Act states that the right conferred under the section is called 'a right to redeem' and a suit to enforce it is called 'a suit for redemption'. The right of redemption can be exercised by the mortgagor only by tendering the money or by depositing it under the provisions of the Transfer of Property Act. In this case neither of these things has been done by the mortgagor. That being so, it seems to me that the section in terms cannot be applied to a prayer in the written statement. What then is the result? As it is, a preliminary decree for sale has been passed on the footing of the reduced amount in pursuance of the section. It is therefore open to the mortgagor to invoke his right to redeem by depositing this amount, in which case he has complied with the provisions of Section 9-A, and the plaintiff would not be entitled to sell the property if the correct amount as scaled down is deposited. It is not disputed that the amount mentioned in the decree of the lower Court is the correct amount and therefore though the procedure adopted by the defendant is not what is contemplated by law, if he does deposit the amount as scaled down by the lower appellate Court, it is not open to the plaintiff to apply for a final decree for sale of the mortgaged property for the entire amount. Time for deposit will be two months from the date of the receipt of the records in the lower Court. If such payment or deposit is not made, the appellant will be entitled to apply for a final decree for the entire amount of Rs. 3,000. There will be no order as to costs in this Second Appeal. No leave.


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