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Thayammal Vs. Adhimoolam Servai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1956)1MLJ75
AppellantThayammal
RespondentAdhimoolam Servai and anr.
Cases ReferredSesha Naidu v. Periasami Odayar
Excerpt:
- - i am satisfied that on the construction of the recitals in the document the view taken by the lower courts that the plaintiff had only a contingent interest is correct. the daughters, who were the next reversioners, executed a mortgage in favour of the plaintiff for the amount of the mortgage decree subsisting on the property with which the decree was satisfied......to the possession of the property. there are cases in which a lessee of the mortgagor has been held entitled to a right to redeem. that is apparently for the reason that he is entitled to remain in possession of the property.5. as regards hindu reversioners, in ram chandar v. kullu i.l.r. (1908) all. 497, it was held by a bench of the allahabad high court consisting of sir john stanley, c.j. and banerji, j., that the reversionary heirs of the deceased husband of a hindu widow in possession as such of her husband's property are not persons who, within the meaning of section 91 of the transfer of property act, 1882, have such an interest in the mortgaged property, as would entitle them during the life-time of the widow to redeem a mortgage made by the husband. it was observed in that.....
Judgment:

Krishnaswami Nayudu, J.

1. This appear arises out of a suit for redemption of a usufructuary mortgage. The suit property belonged to one Periyasami Servai. He had four sons. The defendants are two of his sons. The 2nd defendant married the plaintiff as his second wife. Between the father and the four sons there was a partition evidenced by Exhibit A-1, dated 29th April, 1929. Even prior to the partition, the property had been mortgaged with possession to the 1st defendant for Rs. 1200 under Exhibit A-2, dated 19th May, 1927. In the partition the property fell to the share of the 2nd defendant. At the time of the marriage with the plaintiff the 2nd defendant executed a settlement deed, Exhibit A-3, dated 23rd June, 1932, which was, however, subject to the othi in favour of the 1st defendant. On 22nd March, 1943, the 2nd defendant purported to execute a release, Exhibit B-1, in respect of the suit property in favour of his father. The plaintiff's case is that she is entitled by virtue of the settlement deed in her favour to redeem the mortgage and that the subsequent release deed executed by her husband would not affect her lights in the property or her right to redeem the suit mortgage. Both the Courts on a construction of the settlement deed held that she had no vested right in the property but had only a contingent interest and therefore was not entitled to redeem.

2. The two points that arise therefore for determination are: whether the lower Courts have properly construed the settlement deed, Exhibit A-3, and whether the plaintiff is entitled to redeem. I am satisfied that on the construction of the recitals in the document the view taken by the lower Courts that the plaintiff had only a contingent interest is correct. Her interest in the property would arise only if the uncertain event of the disagreement between the plaintiff and the second defendant should arise at any time and if they lived amicably there is no scope for the settlement becoming effective and any interest in the property would not vest in her, the right to the income of the property being dependent upon the happening of an uncertain event, the uncertain event in this case being any disagreement that may arise between the parties. It is not suggested that such a contingency had arisen and there are no allegations in the plaint that at any time the plaintiff had fallen out with her husband and has been obliged to live separately.

3. The only other question therefore is whether a person having a contingent interest and not a present interest or a vested right can sue for redemption under Section 91 of the Transfer of Property Act. Section 91, Clause (a), confers a right of redemption on

any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same.

Unless the plaintiff could be held to have any interest in the property, as there is no question of her claiming to have any charge under the settlement deed, she would not come within the meaning of the term 'any person' in Section 91, Clause (a). Prima facie, such a person is expected to have a present and subsisting interest in the property and not a contingent interest in the property, the interest or the right arising on the contingency which may or may not happen. The plaintiff cannot therefore be considered to have any interest in the property, though she may claim a right to it on the happening of the contingency. Such a contingency, not having arisen, she must be held to have no interest in, the property.

4. Decisions bearing on the rights of a Hindu reversioner are relied upon in support of the contention that the plaintiff's position in the case may be equated to that of a Hindu reversioner and it is urged that if a Hindu reversioner is considered to have such interest in the property as would entitle him to safeguard the interest of the reversion by securing the property from the mortgagee, there is no reason why the plaintiff who has a contingent interest should not be considered to have such interest in the property, as she is interested in seeing to the property being secured for her in case the contingency should occur at any time, in which event she would become entitled to the possession of the property. There are cases in which a lessee of the mortgagor has been held entitled to a right to redeem. That is apparently for the reason that he is entitled to remain in possession of the property.

5. As regards Hindu reversioners, in Ram Chandar v. Kullu I.L.R. (1908) All. 497, it was held by a Bench of the Allahabad High Court consisting of Sir John Stanley, C.J. and Banerji, J., that the reversionary heirs of the deceased husband of a Hindu widow in possession as such of her husband's property are not persons who, within the meaning of Section 91 of the Transfer of Property Act, 1882, have such an interest in the mortgaged property, as would entitle them during the life-time of the widow to redeem a mortgage made by the husband. It was observed in that case that the interest referred to in Section 91(a) is a present interest and not a mere contingent right such as a Hindu reversioner possesses and the learned Judges did not consider it necessary to extend the meaning of the word 'interest' as used in the section so as to embrace the chance of inheritance of a reversionary heir.

6. In Narayana Kutti Goundan v. Pechiammal : (1912)22MLJ364 , a mortgage decree was obtained against the widows in possession of their husband's estate. The daughters, who were the next reversioners, executed a mortgage in favour of the plaintiff for the amount of the mortgage decree subsisting on the property with which the decree was satisfied. It was held that though the mere payment of a mortgage-debt by a stranger will not entitle him to the mortgagee's rights by subrogation, yet under Section 91 of the Transfer of Property Act, the reversioners become equally entitled to a charge over the property and they could validly assign this charge to the plaintiff by way of sub-mortgage. In the course of the judgment, Sundara Ayyar, J., observed that on the whole he was inclined to hold that a reversioner could not voluntarily claim to redeem a mortgage made by the last male holder or institute a suit for the purpose, but that it did not necessarily follow from that when a suit was instituted by a mortgagee for sale, the reversioner had not sufficient interest in the property to entitle him to discharge the mortgage to prevent the loss of the property to which he would be entitled to succeed on the death of the widow. His right was held to be in the nature of a right of a person interested in the payment of money which another was bound by law to pay and who therefore pays it to be reimbursed by the other, which is recognised in Section 69 of the Indian Contract Act and the learned Judge observed that there was no reason for holding that only those who had an interest in a mortgaged property within the meaning of Sections 85 and 91 of the Transfer of Property Act could be held to be interested in the payment of money due on a mortgage created by the last male owner. Since the reversioner was a person interested in the preventing loss to the property in the circumstances that had arisen there when the property was about to be lost to the family, he was held to have such interest to see that the property was secured for the reversion and therefore he was held entitled to a charge on the property. It was not held however that a reversioner as such is a person who is interested in the property within the meaning of Section 91, Clause (a) of the Transfer of Property Act and therefore entitled to redeem.

7. The decision in Sesha Naidu v. Periasami Odayar : AIR1921Mad272(1) ., was also relied upon. In that case a Hindu reversioner instituted a suit in 1914 to recover possession of certain lands which had been usufructuarily mortgaged by the last male owner in 1866, and had been sold for consideration by the mortgagee in 1900 after the death of the last male owner and during the life-time of his daughter who had inherited his estate and died in 1906. The vendees who were impleaded in the suit relied on the bar of limitation. It was held that Article 134 and not Article 141 of the Indian Limitation Act applied to the case and that the suit was barred by limitation. Ramesam, J., referring to the decisions in Ram Chandar v. Kallu I.L.R. (1908) All. 497, and Vengamma v. Chelamayya : (1912)23MLJ168 , holding that the reversioner cannot sue to redeem during the lifetime of the widow, observed that ordinarily this may be true but he did not understand the cases to lay down that in a case

where the appropriate allegations are made and the facts are proved to the effect that the intervening female's conduct is such as to raise the apprehension that the property will never be redeemed or altogether lost to a transferee, the reversioner cannot maintain an action for the preservation of the property, on the same principle that actions to restrain waste are allowed.

8. Even a Hindu reversioner as such has not been held to be a person possessing such an interest as is required under Section 91 of the Transfer of Property Act entitling him to redeem. The view taken by our High Court is that, as the reversioner has got a right to restrain waste if circumstances require his interference, as when the widow has neglected to redeem the property or has collusively allowed the property to be brought to sale and if it then becomes necessary to secure the property against its being lost to the reversioner, it might be open to the reversioner to sue for redemption. In the present case it must be noted that the mortgage that is sought to be redeemed is a usufructuary mortgage and unless the plaintiff is entitled to possession of the property, which right to possession and the right to the property she gets only on the happening of the contingency provided in the settlement deed, she is not a person who has a present interest, much less any interest in the property entitling her to redeem. It may be urged even in the present case that if the husband had colluded with the 1st defendant and allowed the property to be sold if it was a simple mortgage, or if there is any apprehension otherwise that the property might not be retained to enable her to have recourse to it in case the contingency provided in the sale deed arose, her case would then be analogous to that of a Hindu reversioner and the question would then arise whether she would not be entitled to redeem, as a Hindu reversioner is considered to have such a right. But it is unnecessary to express any final opinion on this question; I am, however, unable to agree with great respect with the observations of Ramesam, J., in Sesha Naidu v. Periasami Odayar : AIR1921Mad272(1) , and subscribe to the view that a Hindu reversioner whatever may be his right to restrain waste would come within the meaning of a person having an interest in the mortgaged property entitling him to sue for redemption, his right not being transferable or heritable but being only spes successionis. To exercise a right to redemption it is not however necessary that a person having a right in the property, as in the case of a vested right, should be entitled to an immediate right to possession and enjoyment and it is sufficient if it is shown that he has a vested right in the property, though the right to possession is postponed. I have no doubt that the lower Courts have come to the correct conclusion as regards the ineligibility of the plaintiff, by virtue of her having only a contingent interest under the settlement deed, to sue for redemption.

9. In the result, the appeal fails and is dismissed. No order as to costs. No leave.


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