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(Basava) Simon and ors. Vs. (Mylavarapu) Rangayya Naidu - Court Judgment

LegalCrystal Citation
SubjectProperty ;Family
CourtChennai
Decided On
Reported inAIR1929Mad339
Appellant(Basava) Simon and ors.
Respondent(Mylavarapu) Rangayya Naidu
Cases ReferredPuma Chandra Sarma v. Peary Mohun Pal Das
Excerpt:
..... - b, the suit mortgage is dated 2nd may 1906. it is contended that, according to its terms, the period of mortgage would end only in 1921, and that, therefore, the suit which was instituted in 1919, is clearly premature. 200 each, with the amount of deposit with you being added to it and the payment got endorsed by me on this instrument. you yourself shall enjoy the usufruct of the palmyrah and other trees on the said lands. that is to say, the mortgagor would not be entitled to redeem the property though he has paid the mortgage debt, and the mortgagee would be entitled to enjoy it though all his debt has been discharged. in this case, as we have already mentioned, no period has been fixed for the mortgage and the provision that we have-examined distinctly shows that the mortgagor is..........air1926mad594 , dismissing the plaintiff's suit for redemption.2. the facts are briefly these: the suit property belonged to one anga narasimhalu who died leaving a widow rangamma and two daughters. the widow put forward anga ramaswamy as having been adopted to her deceased husband. on 6th april 1902, the suit property was mortgaged in favour of defendant 1 by the adopted son represented by his guardian, the adoptive mother. on 2nd may 1906. another mortgage, ex. b, was executed by the widow as the guardian of the adopted son, in which the prior mortgage was merged. the plaintiff's suit out of which this letters patent appeal arises was instituted for the redemption of this mortgage, ex. b. after executing the said mortgage the widow rangamma sold the suit property to the plaintiff's.....
Judgment:

1. This is an appeal under, Clause 15, Letters Patent, against the judgment of Spencer, J., in Rangayya Naidu v. Rasava Simon : AIR1926Mad594 , dismissing the plaintiff's suit for redemption.

2. The facts are briefly these: The suit property belonged to one Anga Narasimhalu who died leaving a widow Rangamma and two daughters. The widow put forward Anga Ramaswamy as having been adopted to her deceased husband. On 6th April 1902, the suit property was mortgaged in favour of defendant 1 by the adopted son represented by his guardian, the adoptive mother. On 2nd May 1906. another mortgage, Ex. B, was executed by the widow as the guardian of the adopted son, in which the prior mortgage was merged. The plaintiff's suit out of which this Letters Patent Appeal arises was instituted for the redemption of this mortgage, Ex. B. After executing the said mortgage the widow Rangamma sold the suit property to the plaintiff's father on 2nd July 1910. On 6th July 1910, the adopted son who had attained majority sold the property to one Vaddadi Ramaswami who in his turn sold it to one Venkata Rao. In O.S. No. 51 of 1910 on the file of the Subordinate Judge's Court of Vizagapatam the plaintiff's lather sought to eject the present defendants after declaring the suit mortgage to be invalid. That suit was dismissed but the plaintiff's right to redeem the mortgage was left open and he was given liberty to institute another suit. In O.S. No. 18 of 1912 on the file of the Subordinate Judge's Court of Vizagapatam the two daughters of the widow Rangamma obtained a declaration that the adoption of Ramaswamy was invalid, and the Subordinate Judge's decision was confirmed by the High Court on appeal.

3. The plaintiff's suit was resisted by the defendants mainly on two grounds: (1) that the plaintiffs are estopped from questioning the validity of the mortgage as their father's vendor, the widow Ban-am ma would be estopped from disputing that the adopted son had no right to convey the suit property and (2) that the suit is premature inasmuch as it has been brought before the expiry of 15 years, the period alleged to be fixed in the mortgage. Both these grounds were overruled by the District Munsif and the Subordinate Judge who gave a decree for redemption' in favour of the plaintiffs. In second appeal preferred by defendant 1 Spencer, J., overruling the plea of estoppel, upheld the plea that the suit was premature and in consequence dismissed the plaintiff's suit for redemption.

4. In this Letters Patent Appeal filed by the plaintiffs both the grounds urged by defendant 1 arise for consideration as the respondent seeks to support the learned Judge's judgment on the plea of estoppel also and he is entitled to do so, although the learned Judge decided against him on that point.

5. We will first deal with the question whether the plaintiff's suit is premature on which the decision has been given against the defendants by Spencer, J., Ex. B, the suit mortgage is dated 2nd May 1906. It is contended that, according to its terms, the period of mortgage would end only in 1921, and that, therefore, the suit which was instituted in 1919, is clearly premature. The amount of the mortgage is Rs. 1,400. Generally stated, the document provides that, out of Rs. 147 the rent accruing from the property, a sum amounting to Rs. 84 at the rate of 6 per cent on the principal should be deducted towards the interest and the balance of Rs. 63 was to be kept by the mortgagee towards the discharge of the principal. Then come the following provisions:

The said amount of principal shall, by 15 years' time, be discharged by seven instalments of not less than Rs. 200 each, with the amount of deposit with you being added to it and the payment got endorsed by me on this instrument. I shall, on the end of the mortgage, take back the lands and the bond. You yourself shall enjoy the usufruct of the palmyrah and other trees on the said lands.

6. It is contended on the strength of these provisions that the mortgagor cannot redeem the mortgage until after the expiry of 15 years from its commencement. It seems to us that this contention cannot be upheld on a construction of all the terms of the document. The bond provides that it shall be discharged 'by 15 years' time,' and this is to be done by making payments in seven instalments of not less than Rs. 200 each, adding to this sum the amount lying in deposit with the mortgagee. The amount of the instalments is mentioned but not its duration. It is clear that according to the terms the instalments could be paid annually and then within a period of seven years the mortgage debt would be discharged. As the duration of each instalment is not mentioned, if it suits the mortgagor, he may make even more than one payment in a year. If we assume that the payments are made annually, then, according to the arguments of the respondent, the mortgagee will be entitled to keep possession of the property for a period of eight years after the complete discharge of the entire mortgage debt; that is to say, the mortgagor would not be entitled to redeem the property though he has paid the mortgage debt, and the mortgagee would be entitled to enjoy it though all his debt has been discharged.

7. We do not think that such a state of affairs would have been in the contemplation of the parties when the mortgage-deed was executed. It seems to us, therefore, that the expression 'by 15 years' time' in the document means ' before the expiry of 15 years,' as contended for by the appellant. It was argued that the sentence beginning with I shall, on the end of the mortgage, take back the lands, etc.' as given above is not a correct translation of the original which, it was urged, should be translated as appearing in the print as 'I shall, on the expiry of the period of the mortgage, take back the lands, etc.' But, even if this is so, what the period of the mortgage is has to be found out on a construction of all the terms of the document since, admittedly, no definite terms has been prescribed as its period. As the question we have to decide depends upon the construction of the particular term of the document Ex. B, no useful purpose will be served by examining the various decisions that were brought to our notice in which the terms of the documents involved in those cases were considered. The decisions in Bakhtawar Begam v. Husaini Khanum A.I.R. 1914 P.C. 36 and Bir Mahammad Rowther v. Nagoor Rowther : AIR1915Mad425(1) do not apply, as the period of the mortgage was specified in the terms of the document. We agree with the principle that a mortgagor cannot be allowed to redeem the mortgage before the expiry of the term mentioned in the mortgage-deed, unless there is a contract to the contrary in favour of the mortgagor. In this case, as we have already mentioned, no period has been fixed for the mortgage and the provision that we have-examined distinctly shows that the mortgagor is entitled to redeem before the expiry of 15 years. In this connexion, reference may also be made to the decision in Puma Chandra Sarma v. Peary Mohun Pal Das [1912] 39 Cal. 828. In our opinion the terms of Ex. B do not warrant the conclusion that the plaintiffs can redeem the mortgage only after the period of 15 years and it, therefore, follows that the decision of the learned Judge that the suit is premature is wrong and should be set aside.

8. The next question for consideration is whether the plea of estoppel urged by defendant 1 can be upheld. On this point Spencer, J., held against defendant 1 (the present respondent). In view of the decisions in O.S. No. 51 of 1910 and O.S. No. 18 of 1912, we think it is not open to the respondent to plead that the appellants are estopped from contending that Anga Ramaswamy had no title to convey the property. In the former suit the present defendant 1 who was defendant 3 there contended that the suit mortgage was valid. By virtue of that decision he is now equitably estopped from denying the plaintiff's right to redeem. In the latter suit to which all the persons interested in the transaction were parties it was held that the adoption was invalid and that the suit mortgage was binding on the estate. In view of that decision which is binding on the defendants, we fail to see how the present plea of estoppel can be successfully urged by defendant 1. On this point we agree with the decision of Spencer, J., As we have held that the plaintiff's suit is not premature, we set aside the decision of the learned Judge and restore the decree of the Subordinate Judge with costs here and in the second appeal.

Civil Revn. Petn. No. 279 of 1926.

No question of jurisdiction is involved in this Civil Revision Petition and it is dismissed but without costs.


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