1. This Appeal is directed against the Judgment and Decree of the learned Principal Subordinate Judge of Coimbatore dismissing the appellant's suit to enforce two mortgages executed in his favour and dated respectively October 2, 1942 and February, 10, 1944, the first of them securing repayment of a sum of Rs. 3,000 and the second a sum of Rs. 7,000. Both the mortgages were with possession and prescribed specific periods for redemption. The first of the mortgages recited.
2. A similar recital was also found in the other mortgage. The defence to the suit was that the mortgages were usufructuary ones and as such the suit to enforce them by bringing the hypotheca to sale was not maintainable. The defendant also claimed that inasmuch as he had, under Section 83 of the Transfer of Property Act, 1882, deposited the moneys due under the mortgages, as scaled down by the provisions of Section g-A of the Madras Agriculturists Relief Act, 1938, as amended by Madras Act (XXIV of 1950), the plaintiff could not recover the amount by means of a suit. The trial Judge accepted the defence on both the grounds and dismissed the suit. In his view, the recitals to pay did not amount to covenants to pay and the mortgages were only usufructuary mortgages. On the other ground, the trial Judge noticed that the plaintiff declined to accept the amounts deposited under Section 83 of the Transfer of Property Act, contending that the defendant was not entitled to scaling down. But he thought that as, in his opinion, the defendant was entitled to the benefit of Section 9-A of the Madras Agriculturists Relief Act, 1938, the deposit under Section 83 of the Transfer of Property Act was proper and that the 'tender has the effect of extinguishing the mortgages.'
3. It seems to me that the view of the learned trial Judge as to the nature of the mortgages cannot be supported. The recitals in the mortgages, to wit,
clearly amount to a covenant to pay the debts. The recitals follow the fixation of definite periods for redemption. Similar language, as used in the recitals here, has been construed by this Court to constitute a personal covenant to pay. In Muhammadhu Mamoona Labbai v. Ramanatha Pillai (1964) 1 M.L.J. 90 the recital was
and following the construction placed by this Court on more or less similar wording in Kangay Gurukkal v. Kalimuthu Annayi (1903) 14 M.L.J. 61 : I.L.R. Mad. 526 , Rajarriannar, J., as he then was, held that the words clearly denoted a personal covenant to pay and therefore, enabled the mortgagee to bring a suit for sale. With due respect, I agree with that construction and hold, that the recitals in the two mortgages in this case undoubtedly mean personal covenants to pay. In fact, the trial Judge, in one place of his judgment, was prepared to take that view but stated:
Thus it was his (plaintiff's) definite assertion that he was entitled to possession. In view of this though there is a personal covenant in the documents to pay, the plaintiff is not entitled to enforce the same.
Obviously, the learned Judge, in adopting that reasoning, has misdirected himself. The mortgages being with possession, the plaintiff was naturally entitled to make the assertion, and it is wrong to say that because of the assertion, the plaintiff could not enforce the personal covenants by a suit for sale. I hold that the suit was maintainable.
4. It is not in dispute that simultaneously with the execution of the mortgages, the defendant continued in possession of the properties mortgaged for certain periods under lease deeds executed by him in favour of the plaintiff. It is true that the defendant does not appear to have been in possession of the properties mortgaged throughout. Nevertheless, I think that there being no controversy that the defendant is an agriculturist, he is entitled to the benefit of Sub-section (9)(a)(i) of Section 9-A of the Madras Agriculturists Relief Act, 1938. This implies that by virtue of Sub-clause (ii) of that sub-section, the provisions of Sub-section (3) will be inapplicable. But this Court has uniformly taken the view in Srinivasaraghava Ayyangar v. Narasimha Mudaliar : AIR1952Mad292 , Tirupathi and Anr. v. Rajagopala Naidu and Ors. : (1956)1MLJ1. , Visalakshi Achi v. Mayalagu (1955) 68 L.W. 630 and Rajagopalan Chettiar v. Sina Ana Jshack Rowther (1966) 2 M.L.J. 495 that having regard to the scheme of the Act, Section 9-A is only intended to apply when the mortgagor seeks to redeem the mortgage. The result is, although the defendant may be entitled to-the benefit of Sub-section (9)(a)(i) of that section, he cannot invoke it in the present suit for sale. The deposit made by the defendant under Section 83 of the Transfer of Property Act is, as appears from the judgment, said to have been withdrawn by the plaintiff. It also appears that the plaintiff objected to the petition under Section 83 and contended that the deposit did not represent the precise amounts lawfully due under the mortgages, with the result that the petition was dismissed. The withdrawal by the plaintiff of the amount deposited was apparently after he had preferred his objections to the deposit proceedings. But it is not the law that once a valid deposit is made ipso jure there is no subsisting mortgage which can be enforced or redeemed. The deposit does not per se operate to discharge the mortgage, and remains the property of the mortgagor until the mortgagee has expressed his willingness to the Court under Section 83 to accept the deposit and deposits the mortgage deed. Unless these conditions are fulfilled, the mere withdrawal of the deposit under different circumstances by the mortgagee will not operate to discharge the mortgage, the reason being that the proceedings under Section 83 would come to an end with the refusal of the mortgagee to accept the deposit. Hence I am of the opinion that the proceeding under Section 83 is of no assistance to the defendant in this suit.
5. The result is, the appeal is allowed. The judgment and decree of the trial Court are set aside and there will be a preliminary decree in favour of the plaintiff for the balance of the debts due under the two mortgages after deducting as on the appropriate date a sum of Rs. 8,785 said to have been withdrawn by the plaintiff. The defendant will have a period of four months for payment. The plaintiff will have his costs throughout.