1. This is an appeal from the judgment of Mr. Justice Devadoss confirming the judgment of the Judge of the City Civil Court. On the 18th June 1862, one Mannappa Mudaliar mortgaged a cawnie of land situated in Perambur in this city to Velayuda Mudaliar for Rs. 50. By the document of mortgage, Ex. B, he undertook to repay this sum within the end of February 1870 together with interest thereon at Rs. 2 per cent. per mensem. '' In default of such payment you are to treat this itself as an absolute sale and enjoy together with rights to water, trees, minerals, etc., therein from generation to generation so long as the sum and moon exist and with powers of alienation by way of gift, exchange or sale.' At the end of 1920 the grandson of Mannappa Mudali, the present plaintiff brought a suit in the City Civil Court to redeem this property which had been, unquestionably and admittedly in the possession of the mortgagee and his descendants since some time in 1870. The exact time may become important and it will be considered by and by. So that the plaintiff about 50,years after the execution of this mortgage is now coming to redeem a piece of land said in 1870 to be worth Rs. 50 or Rs. 60 and which may not unreasonably be supposed to have by this time enormously increased in value. The defendants alleged in their written statement the terms of the document which I have set out and said that after the date fixed the said deed, Mannappa Mudali finally relinquished his interest in the property and in 1874 Singara Mudaly obtained Collector's certificate in his name after the publication of the usual notices etc. That document is Ex. I. The application for the certificate is Ex. II and is dated 15th January 1874, wherein the applicant sets out that the land was purchased by his father Velayutha Mudaliar from Mannappa Mudaliar on 15th June 1869. It was been long established since Thambusami v. Hosain  1 Mad. 1 that as to mortgages executed between the years 1858 and the coming into force of the Transfer of Property Act in 1882 the equity of redemption which had been originally imported from the English Courts, and enunciated by the Sudder Court in Madras, must be recognized and it is admitted that if a right of redemption in the case still exists the plaintiff is entitled to succeed. It is also admitted by Mr. Srinivasa Gopalachariar for the respondents that there must be some transactions proved dehors the document Ex. B before the Court can be satisfied that the equity of redemption has been relinquished or, disposed of by the mortgagor. Our attention was called to Athan Kutti v. Subhadra : (1917)32MLJ317 which distinguished Usman Khan v. Dasanna  37 Mad. 545. It is really of little use to refer further to the law in the matter as in my opinion the question resolves itself really into one of fact. We have to consider what was the character of this mortgage set out in Ex. B. The appellant contends that it is a usufructuary mortgage and that therefore possession was delivered to the mortgagee at the date of the mortgage. The argument on the other side is that there is no statement in the document that possession has been delivered. Further there is a personal covenant to repay and a stipulation for a certain rate of interest both of which are indicia of what we now call simple mortgage or hypothecation. The learned City Civil Court Judge who dismissed the plaintiff's suit held that possession was not transferred to the mortgagee but that at the expiry of a year or thereabouts the mortgagee made no demand on the mortgagor for the interests due to him and as the latter was unable to pay either interest or principle relinquished the title in favour of the mortgagee and referring to the decision in 32 M.L.J. the learned Judge says ' that decision could have no application to a case like the present where the defendants did not come into possession on the date of the mortgage but on a later date. The learned City Civil Court Judge comes to the conclusion that some time after the date of the mortgage there was an oral sale of the equity of redemption by the mortgagor to the mortgagee and that the mortgagee was then for the first time put in possession of the mortgaged property.
2. Appeal was taken to Mr. Justice Devadoss, who after examining the evidence as he was entitled to do, came to the conclusion agreeing with the learned trial Judge that the mortgage evidenced by Ex. B was a simple mortgage and that after the due date for repayment the mortgagee asked for his money and the mortgagor said the mortgagee might take the land as his own, whereupon possession was handed over to the mortgagee. The learned Judge further remarks ' the conduct of the parties goes to show that the property was treated by both the parties as the property of the defendants.' We have been taken through, the evidence adduced in the case and have examined it with care. The evidence is to the effect that when the mortgagees demanded his money the mortgagor said : ' T cannot pay, take the land.' D.W. 3, who is the son of the mortgagor says that for one year the land was in their possession and because the father was unable to pay, the land was given up to the defendant's ancestors relinquishing for ever according to Ex. B. He also says: ' There was no separate sale as the mortgage deed itself made it into a sale at the end of the year.' That expression is strongly relied on by the learned vakil for the appellant as showing that there was no independent transaction and had that stood alone I think it would have deserved a good deal of consideration. To complete the evidence D.W. 4 says: 'At the end of the year when, the land was given up to Velayudha they started improving the land. When the mortgagor was asked for money he replied: ' You better have the land, I have no money to pay' On this evidence I think one must come to the conclusion that possession was not given under Ex. B, but that the mortgagee was put into possession after the mortgagor had distinctly relinquished or sold or transferred to him the equity of redemption on being unable to pay the principal money and interest. There was, therefore, a separate transaction-dehors the instrument such as was subsequently embodied in the requirements of Section 60 of the Transfer of Property Act. There is a concurrent finding on the points I have discussed by both the City Civil Court Judge and Mr. Justice Devadoss, and I can see no reason to come to a different conclusion. In my opinion the appeal must be dismissed with costs.
Madhavan Nair, J.
3. I entirely agree and have nothing to add.