Charles Gordon Spencer, J.
1. This is a suit for redemption. The plaintiffs obtained a decree for redemption in the Court of the District Munsif of Vizagapatam and the decision was confirmed on appeal. The defendants, who represent the mortgagees, contend that the plaintiffs' suit is not maintainable, first, because the plaintiffs have no locus standi to maintain the suit as they are estopped from asserting that their vendor had any title to convey to them; and secondly, because the term of the mortgage has not expired and the suit is premature.
2. The lands in dispute were the property of one Anga Narasimhulu who died in 1901 leaving a widow Rangamma and two daughters. After his death the widow put forward Anga Ramaswami as having been adopted to her deceased husband. On 6th April 1902 she executed a usufructuary mortgage for Rs. 1,000 in favour of the first defendant. The mortgagor under this document was her adopted son Ramaswami represented by his guardian the adoptive. mother. On 2nd May 1906, another usufructuary mortgage was executed by the widow as guardian of her adopted son for Rs. 1,400. In this mortgage the prior mortgage of 6th April 1902 was merged. This mortgage, Ex. B, is sought to be redeemed in the present suit. On 2nd July 1910 Rangamma sold the suit property to the plaintiffs' father. On 6th July 1910 the adopted son who also had attained majority, sold the property to Vaddadi Ramaswami, who in his turn on 11th January 1912 sold the same property to Mylavarappa Venkata Rao. The plaintiffs' father brought a suit in 1910, O.S. No. 61 of 1910 on the file of the Court of the Subordinate Judge of Vizagapatam, to eject the present appellants after declaring the mortgage in their favour to be invalid. That suit was dismissed, the plaintiff's right to redeem the mortgage being left open and he being given liberty to bring another suit. In 1912 the two daughters instituted a suit O.S. No. 18 of 1912 in the Court of the Subordinate Judge of Vizagapatam to declare the adoption of Anga Ramaswami invalid. It was held that the adoption was not proved, and this decision was confirmed by the High Court on appeal. One other fact requires to be mentioned, namely, that Rangamma executed a Will on 3rd April 1902 bequeathing all her properties in favour of her adopted son and two daughters one-third to him and two-thirds to the daughters. As Rangamma is still alive, though not a party to the present suit, it is unnecessary to consider the effect of this testamentary disposition.
3. On the first point the appellant's Vakil argues that the mortgage having been given in the name of the adopted son, the plaintiffs who claim by purchase from the widow have no equity of redemption in their favour, and the adopted son having sold the property to Vaddadi Ramaswami who again conveyed it to Mylavarapu Venkata Rao, it is suggested that, if any one has the equity of redemption, it must be Mylavarapu Venkata Rao. Again he contends that the widow, having executed the plaint mortgage-deed as guardian of her adopted son, would be estopped from claiming any right of redemption in herself and that the plaintiffs, being representatives of the interest of the widow, are similarly estopped.
4. In my opinion, there is no estoppel in this case. The plaintiffs' father purchased the property under Ex. A from the widow who sold it in her own right and not as guardian of her adopted son. In fact she would have had no right to sell the property on his behalf if the adoption was a valid one as by that time he had attained his majority. The validity of the adoption was the subject of O.S. No. 18 of 1912. It has not been put in issue in this suit although the Subordinate Judge in his judgment states that there was in fact no adoption. The appellants who claim to set up jus tertii in Venkata Rao as a defence to plaintiffs' suit do not themselves claim under Venkata Rao. The plaintiffs have never made any representation as to the ownership of the property conflicting with their case in the present suit and defendants have not been misled by their conduct. Their father purchased the widow's interest in the suit property under Ex. A and as possessing that interest, they certainly have the right to redeem the property from any encumbrances upon it, as they are persons having an interest within the meaning of Section 91 of the Transfer of Property Act. The defendants could only defeat the plaintiffs' right to redeem by showing that at the date of the plaintiffs' father's purchase the widow had no interest to convey. This they have not done, as they have not attempted to show that Anga Ramaswami was validly adopted.
5. I now pass on to the second question whether the suit is premature. The mortgage-deed, Ex. B, is a peculiar document. It provides that the rent of the land should go towards the interest due upon the principal and that the mortgagee should keep the surplus as a deposit with him. As the rate of interest was 6 per cent. and the amount of the principal was Rs. 1,400, Rs. 84 out of the rent of Rs. 147 went towards interest and the balance of Rs. 63 was to be kept by the mortgagee towards the discharge of the principal. Then there is a provision that the principal shall be discharged by seven instalments of not less than Rs. 200 each within 15 years' time. Finally the mortgagor contracts to take back the land and the bond at the end of the mortgage (thanahaakarna) which does not appear to mean upon the mortgage amount being cleared off (thanakathirina). The time for the payment of the instalments is not specified. Apparently the mortgagor was at liberty to pay off the instalments at any short intervals at his pleasure provided that not less than Rs. 200 were paid at a time. There is no express provision in Ex. B that on payment of the whole of the mortgage amount at any time before the expiry of 15 years, the mortgagor can recover the land. It is conceivable that the parties intended this, but failed to express their intention in proper language. As such a term gives an advantage to the mortgagor, it was necessary that it should be clearly expressed. The mortgage-deed being dated 2nd May 1906, the term of the mortgage did not expire till 2nd May 1921 and this suit, having been instituted on 23rd April 1919 is prima facie premature. In the plaint the cause of action is stated to have arisen on the date when the mortgagor gave notice of his intention to redeem, which is obviously wrong. In Bakhtawar Begam v. Husaini Khanam : (1914)16BOMLR344 their Lordships of the Judicial Committee quote the judgment of the Allahabad High Court to this effect.
Ordinarily, a mortgagor cannot, before the time limited for payment to the mortgagee expires, take proceedings to redeem. The reason for this is, that it was the agreement of the parties that the mortgage should, during the intervening time, remain as security for the money advanced and, therefore, it is not competent for either party to disturb that relation.
6. They go on to observe in their own words:
But there is nothing in law to prevent the parties from making a provision that the mortgagor may discharge the debt within the specified period and take back the property. Such a provision is usually to the advantage of the mortgagor.
7. In Bir Mohamed Rowther v. Nagoor Rowther 25 Ind. Cas. 576 : 27 M.L.J. 483 : 16 M.L.T. 163 a Bench of this Court, following the Privy Council ruling, held that a mortgagor could not be allowed to redeem the mortgage before the expiry of the term mentioned in the mortgage-deed, unless there was a contract to the contrary in favour of the mortgagor. In Vadju v. Vadju 5 B. 22 : 3 Ind. Dec. 16 it was held that the mere use of the word 'within' was not sufficient indication that the mortgagor might redeem before the expiration of the term. Westropp, C.J., stated the general principle to be that the right to redeem and the right to foreclose must ordinarily be regarded as co-extensive. He remarked that if there was an intention to make the mortgagor's position more favourable than the mortgagee's, some stronger expression should have been used in the document than the Marathi word ''ant' which signifies 'within a certain date.' In Rose Ammal v. Rajarathnam Ammal 23 M. 33 : 8 Ind. Dec. (N.S.) 418 Shephard, J., observed that the rule of mutuality is not an inflexible and universal one and that if the parties intend that redemption should take place only at the end of the given term, they should indicate that intention in the words of the deed. This seems to put the onus on the wrong shoulders, as the learned Judge was dealing with an exception to a general rule. In Chandu v. Koaji Poojari 30 Ind. Cas. 370 : 29 M.L.J. 86 Wallis, C.J., and Seshagiri Iyer, J., referred to the mortgagor's right to redeem before the end of the period and to the Privy Council decision in Bakhtawar Begam v. Husaini Khanam : (1914)16BOMLR344 and they allowed redemption to be made in view of the provision in the mortgage before them providing for payment by the mortgagor on or before a certain date. In Dronamraju Lakshmi v. Immani Seshayya : AIR1925Mad825 . Devadoss, J., allowed a mortgagor to redeem before the expiry of the term, as an equitable remedy called for in the circumstances of that case.
8. In the document before me there are no clear words which permit the mortgagor to pay the whole of the principal on or before the expiry of the mortgage term and to obtain possession of the land. As it is a usufructuary mortgage, the mortgagee is entitled to insist on the term which provides for 15 years' enjoyment (see Shephard and Brown's Commentary on Section 60 of the Transfer of Property Act, page 260 of 7th Edition). The mortgagee under the terms, of this document, could not enforce his rights until the full 15 years were over. There must be mutuality in such an agreement. It is provided that the profit or loss arising from the yield of the mortgage land should be borne by the mortgagee. He may have been unwilling to take a mortgage for less than 15 years, and he may, fairly have expected the losses in unfavourable years to be made good by gains in more favourable years. I think that I am bound to follow the decision in Bakhtawar Begam v. Husaini Khanam : (1914)16BOMLR344 and the decision of a Bench of this Court in Bir Mohamed Rowther v. Nagoor Rowther 25 Ind. Cas. 576 : 27 M.L.J. 483 : 16 M.L.T. 163.
9. The respondents' Vakil has pointed out that although the cause of action for redemption may not have arisen at the date of the plaint, more than 15 years had elapsed at the date of the hearing at the first and the second appeals. The Subordinate Judge has also relied on this circumstance. Subbaraya Chetty v. Nachiar Ammal 44 Ind. Cas 863 : (1918) M.W.N. 199 : 7 L.W. 403 a Bench of this Court under special circumstances granted a decree where the cause of action arose subsequent to the date of the suit. That case is inconsistent with the decision in Ramanadan Chetti v. Pulikutti Servai 21 M. 288 : 8 M.L.J. 121 : 7 Ind. Dec. 559 where the rule of procedure that a party suing for possession must show that on the date of the suit he was entitled to relief is followed. Suits for possession are exceptions to all the general rule. In Doraisami Pillai v. Chinnia Goundan : AIR1918Mad272 it was held that a suit for redemption was liable to be dismissed on the pleadings in the plaint, and the plaintiff during the pending of the suit obtained a conveyance which cured his want of title and he was allowed to amend his plaint and obtain a decree for redemption. In that case the flaw in the plaintiffs' right to redeem was not that his suit was premature in point of time but that he had not got title from the true owner. The case is not an authority for the proposition that if a suit is premature at the date of institution, a decree can nevertheless be granted. In my opinion the only course where the plaintiff brings his suit before the cause of action arises, is to dismiss the suit with liberty to bring a fresh suit upon a proper cause of action.
10. The second appeal is, therefore, allowed and the suit will be dismissed with costs throughout.