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Rajagopal Naidu Vs. Kunjammal Alias Sivakami Ammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1956)1MLJ589
AppellantRajagopal Naidu
RespondentKunjammal Alias Sivakami Ammal
Excerpt:
- .....mortgagee's rights can only mean the absolute conveyance of the mortgagee's rights in part of the mortgaged properties. for example if the usufructuary mortgage consists of more than one item if the entire rights of the usufructuary mortgagee are conveyed to another, then there is a transfer of mortgagee's interest wholly but on the other hand if one or more items alone are transferred out of a number of other items then it cannot be said that there is a transfer in part of the mortgagee's rights. if mr. desikan's argument is correct, then the situation comes to this. any usufructuary mortgagee leasing out his properties to a lessee can claim the exemption by saying that is a transfer either wholly or in part. it is sufficient to state the proposition in such terms to demonstrate the.....
Judgment:

Govinda Menon, J.

1. This Second Appeal has been referred to a Bench by Krishnaswami Nayudu, J., as it raises a question regarding the scope of the exemption provided for by Section 9-A, Clause (10)(b) of Act IV of 1938.

2. The appellant before us is a usufructuary mortgagee of certain items of properties from the respondents under Exhibit A-1, dated 10th November, 1930, for Rs. 500. In his turn the appellant sub-mortgaged the mortgage right under Exhibit B-1 dated 29th July, 1945, for a sum of Rs. 3,500 along with other properties. In the suit by the respondent mortgagor for redemption claiming the benefits of the Section 9-A of the Madras Agriculturist's Relief Act, the appellant claimed the exemption under Section 9-A, Clause (10)(b). Both the lower Courts have held that he is not entitled to the exemption. Hence this Second Appeal.

3. Section 9-A, Clause (10)(b) begins as follows:

Nothing contained in this section except sub-sections (1) and (2) shall apply to any mortgage....

(b) Where during the period aforesaid the mortgagee or any of his successors-in-interest has transferred either wholly or in part the mortgagee's rights in the property bona fide and for valuable. consideration then, to the whole or such part, as the case may be:

Provided that the transferee of a mortgage shall not be entitled to recover in respect of such mortgage, anything more than the value of the consideration for the transfer; but nothing herein contained shall in cases where the property or portion thereof has been leased back to the mortgagor, affect the right of the transferee to recover the rents, if any, due under the lease if such rents have not become barred by limitation under any law for the time being in force.

Mr. Desikan for the appellant contends that by the execution of the sub-mortgage Exhibit B-1 the mortgagee has ' transferred in part' the mortgagee's rights in the property bona fide and for valuable consideration and therefore the exemption is attracted. That the sub-mortgage was executed after 30th September, 1937 and before 30th January, 1948, is admitted and therefore the question that has to be considered is whether by the sub-mortgage there could be said to be a transfer in part of mortgagee's rights in the property. The word ' transfer ' is defined in Wharton's Law Lexicon, 14th edition, at page 1006, as follows:

Transfer: to convey; to make over to another; the document by which property, as shares in public companies, is made over by one to another. The Real Property Act, 1845 and 9 Vic. C. 106 (reproduced in an amended form by Section 52, Law of Property Act, 1925) provided that a transfer (therein called a feoffment) (see that title) of land, and an assignment of a lease (therein called a 'chattel interest') of land must be by deed.

Therefore Mr. Desikan contends that the creation of a sub-mortgage is a ' transfer ' as contemplated by Act IV of 1882 the Transfer of Property Act. We do not think that contention can be accepted. The exemption provided by Sub-section (10) has been divided into three categories. Category (a) speaks of the equity of redemption of the property devolving in whole or in part on a person. That certainly would not mean the creation of subsidiary interest and so far as subsection (c) is concerned, it speaks of mortgagee's interest being the Subject-matter of partition. We have, therefore, to reconcile the three sub-clauses and it seems to us that the transfer in part of the mortgagee's rights can only mean the absolute conveyance of the mortgagee's rights in part of the mortgaged properties. For example if the usufructuary mortgage consists of more than one item if the entire rights of the usufructuary mortgagee are conveyed to another, then there is a transfer of mortgagee's interest wholly but on the other hand if one or more items alone are transferred out of a number of other items then it cannot be said that there is a transfer in part of the mortgagee's rights. If Mr. Desikan's argument is correct, then the situation comes to this. Any usufructuary mortgagee leasing out his properties to a lessee can claim the exemption by saying that is a transfer either wholly or in part. It is sufficient to state the proposition in such terms to demonstrate the unsoundness of the contention. We have no doubt whatever that the words ' transfer in part of the mortgagee's rights' would mean absolute conveyance or renunciation of the whole bundle of rights in the entire property or part of it. The view which we have taken finds favour in an elaborate discussion by one of us (Ramaswami, J.) in G.M.A. 205 of 1952 with which the Bench is in complete agreement. It is unnecessary to expatiate on the various points discussed in that case. The Second Appeal therefore fails and is dismissed with costs.


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