1. The father of the defendants in this suit had a money decree against a Zamindar, the owner of the properties in dispute, and in execution of that decree brought them to sale in June 1893. The plaintiff, the appellant before us, bought the property by private sale from the Zamindar in 1916, under Exhibit A, and the appellant's case is that the purchase by the respondents' father was invalid inasmuch as the respondents' father was a usufructuary mortgagee of these properties and, therefore, under Section 99 of the Transfer of Property Act of 1882 he could not bring the property to sale in execution of the money decree. The first question for determination is whether the defendants' father was in fact a usufructuary mortgagee.
2. What happened was, one Veerappa Chetty under Exhibits III and IV, Othi deeds of 1875, had a usufructuary mortgage for Rs. 10,750. He was to enjoy the property in lieu of interest. The defendants' father had a money decree for nearly Rs. 7,000. That was in Suit No. 64 of 1880. Then it appears that the Zamindar, the predecessor of the present Zamindar, executed Exhibit B, purporting to be a usufructuary mortgage, in 1882 for Rs. 16,000 in favour of the father of the defendants. The terms of that mortgage were that out of Rs. 16,000 the defendants' father was to pay off the Othis in favour of Veerappa Chetty (Rs. 7,000 odd) and be was to satisfy his own decree with a sum of nearly Rs. 8,000 and the balance of Rs. 1,000 he was to spend for repairing certain tanks in the Zamindari. Though the documant was executed and registered about 3 months afterwards at the instance of the defendants' father, it is indisputable that on the one hand Veerappa Chetty's debt was never paid nor the decree debt due to the defendants' father, nor was any money spent for repairing the tanks as contemplated in Exhibit B, and on the other hand the defendants' father never got possession of the property. The decree which the defendants' father had was executed apparently without any objection on the ground that it was merged in or satisfied by Exhibit B and the property sold, as already stated, and bought by the defendants' father.
3. One of the issues in the ease was whether Exhibit B ever came into operation at all so as to clothe the defendants' father with the status of a mortgagee to bring into operation Section 99 of the Transfer of Property Act. It seems to us clear, once the nature of the transaction is properly grasped, that the parties could never have intended Exhibit B to come into operation until at least Veerappa Chetti's debt, in consideration for which he was in possession of the property in dispute as a usufructuary mortgagee, was satisfied. It appears from the evidence that Veerappa Chetty was unwilling to accept Rs. 7,000 in satisfaction of the Othis. He claimed that Rs. 10,000 was due to him and the Zamindar was unable to pay that amount. The defendants' father under Exhibit B on ths other band was not bound to pay more than Rs. 7,000 and odd mentioned in that document. The result was that Exhibit B could not be acted upon and the evidence is that the document was returned some time after to the Zamindar, Upon these facts it is impossible to hold that the defendants' father ever was a usufructuary mortgagee so as to be under any disability by virtue of Section 99 of the Transfer of Property Act. It is obvious that Exhibit B as a usufructuary mortgage could not come into operation until the previous usufructuary mortgage had been satisfied, and that is why the document stipulated that Veerappa Chetty's mortgage should be paid off. That clearly implies that the parties intended that Exhibit B should not come into operation until Veerappa Chetty's Othis had been paid off. That is not. a case like that in Abdul Hashim v. Kader Batcha 48 Ind. Cas. 370 : 42 M.P 20 : 35 M.L.J. 740 : 8 L.W. 543 : (1918) M.W.N. 769 : 24 M.L.T. 478 where the mortgage had been acted upon, possession being obtained of at least a portion of the properties, and the mortgagee leased it to some other person. Similarly Srinivasa Swami Aiyangar v. Athmarama Iyer 2 Ind. Cas. 612 : 32 M.P 281 : 19 M.L.J. 280; 5 M.L.T. 84 has no application, because here not only was Exhibit B never acted upon by the parties, but according to the terms it could not come into operation unless a certain condition was fulfilled, and that condition was never fulfilled. For these reasons we are of opinion that the conclusion of the learned Subordinate Judge on this point must be confirmed.
4. The result is that the appeal must be dismissed with costs.