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M.A.R.A.R. Arunachala Chettiar Trustee of Sree Kalahasti Swaraswami Temple Vs. Raja Damara Kumara Thimma NarayanIn Bahadur Varu, Rajah of Kalahasti (Dead) and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in62Ind.Cas.505
AppellantM.A.R.A.R. Arunachala Chettiar Trustee of Sree Kalahasti Swaraswami Temple
RespondentRaja Damara Kumara Thimma NarayanIn Bahadur Varu, Rajah of Kalahasti (Dead) and ors.
Cases Referred(Sic) Venkataran v. Mahablesuar
Excerpt:
.....mortgagor trustee directing immediate re-payment and declaring transaction to be breach of trust--suit to enforce mortgage before expiry of term, whether premature--failure to pay interest regularly, effect of--'mortgage-money' in section 58, meaning of. - - 2. where the transaction amounts to a breach of trust and a decree for immediate re payment of the loan has been made against the mortgagor trustee, i do not think that equity would allow a stipulation in the mortgage-deed postponing re-payment to stand in the way of immediate foreclosure, independently of the further question, which would arise in england, whether the failure to keep down the interest on the mortgage would not also give a right to immediate foreclosure. i do not think that the mere failure to keep down the..........the previous trustee of the temple, who during the period of his trusteeship executed the suit mortgage in favour of the temple for rs. 45,000, then due by him to the temple for past and present advances to his predecessors and himself, and against the 2nd and 3rd defendants who were impleded as alienees of the suit villages. the district judge has dismissed the suit as permature in consequence of a stipulation in the mortgage-deed that the debt was not to be re-payable for 20 years. in england such stipulations appear to be a bar to foreclosure before the due dates in the absence of fraud; fisher on mortgager, paragraphs 712 and 713. in this case, however, in a suit instituted on behalf of the charity under section 92 of the civil procedure code the whole transaction has been.....
Judgment:

John Wallis, C.J.

1. This is an appeal from a decision of the District Judge of North Arcot dismissing as premature a suit brought by the present trustee of the suit temple against the late Rajah of Kalahasti, the previous trustee of the temple, who during the period of his trusteeship executed the suit mortgage in favour of the temple for Rs. 45,000, then due by him to the temple for past and present advances to his predecessors and himself, and against the 2nd and 3rd defendants who were impleded as alienees of the suit villages. The District Judge has dismissed the suit as permature in consequence of a stipulation in the mortgage-deed that the debt was not to be re-payable for 20 years. In England such stipulations appear to be a bar to foreclosure before the due dates in the absence of fraud; Fisher on Mortgager, paragraphs 712 and 713. In this case, however, in a suit instituted on behalf of the charity under Section 92 of the Civil Procedure Code the whole transaction has been held to be a breach of trust and a decree has been passed against the mortgagor for the immediate payment of the debt.

2. Where the transaction amounts to a breach of trust and a decree for immediate re payment of the loan has been made against the mortgagor trustee, I do not think that equity would allow a stipulation in the mortgage-deed postponing re-payment to stand in the way of immediate foreclosure, independently of the further question, which would arise in England, whether the failure to keep down the interest on the mortgage would not also give a right to immediate foreclosure.

3. It is, in my opinion, unnecessary to pursue either of these questions, because, in this country, we are not governed by the rules of equity as to foreclosure, but by the express provisions of Section 67 of the Transfer of Property Act as regards the right to fore closure or sale. That Section provides that, in the absence of a contract to the contrary, the mortgagee has 'at any time after the mortgage money has become payable to him and before a decree has been made for the redemption of the mortgaged properly, or the mortgage money has been paid or deposited, as herein provided', a right to obtain an order for foreclosure or sale. Now, as interest is included in the term mortgage money in Section 58(a), it would seem to follow that, when interest on a mortgage is in arrear, the mortgagee is entitled under the section to realize such interest by sale of a sufficient portion of the security. even where the principal debt has not yet become repayable.

4. It is unnecessary to decide this point either, because where, as in the present ease, the mortgage debt has become re payable to the mortgagee immediately, I think the mortgagee is entitled at once to enforee his security as regards both principal and interest by fore-closure or sale by virtue of the section. As I have already said, I think that the same re suit would follow in equity, but here we are governed by Section 67, which gives the mortgagee a right to foreclosure or sale 'at any time after the mortgage money has become payable to him' Here the mortgage-debt has been made re payable on the ground that as between the mortgagor trustee and the mortgagee cestui que trust the mortgage was a breach of trust in a suit properly in stituted on behalf of the cestui que trust, in this case a public charity, under Section 92 of the Civil Procedure Cods, not withstanding the stipulation in the mortgage-deed that the principal should not be re-paid for twenty years, which was in effect held to be unenforceable. I would, therefore, reverse the decree of the District Judge and decree the suit with costs throughout. Time for redemption six months.

Sadasiva Aiyir. J.

5. I agree. I do not think that the mere failure to keep down the interest by regular and punctual payment would, by itself, put an end to the term provided for in the document of mortgage for re payment of the principal amount, and I am not prepared to agree with the Bombay decision quoted to that (Sic) Venkataran v. Mahablesuar 26 B. 241.


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