Decided on February 19,1952



Rajamannar, C.J. - (1.) This is an appeal under the Letters Patent against the judgment of Rajagopalan J. dismissing a second appeal by the defendant in an action for redemption of a usufructuary mortgage for Rs. 650 effected under a deed dated 23-9-1940 by one Syed Ismail in favour of the defendant. The mortgage was redeemable at the end of three years. Before the expiry of this period, Syed Ismail conveyed the equity of redemption in the mortgage property to the plaintiff-respondent by a deed, Ex. P. 1, dated 4-8-1942. It is common ground that out of the sale consideration of Rs. 2900 a sum of Rs. 2029 was still due and payable even on the date of the suit. The sale deed which was executed on Venkataperumal Naidu vs. M. Rathnasabhapathi Chettiar (19.02.1952 -MADHC) Page 2 of 3 perumal Naidu vs. M. Rathnasabhapathi Chettiar (19.02.1952 -MADHC) Page 2 of 3 4-8-1942 was registered only on 20-10-1942. Meanwhile, Syed Ismsil had executed another usufructuary mortgage in favour of the defendant on 7-91942 to secure a further advance of Rs. 1000 alleged to have been paid on that date. On 14-10-1943, the plaintiff tendered the mortgage amount of Rs. 650/but the defendant refused to accept it. The plaintiff followed by an application under Section 83, T. P. Act but that petition was dismissed because the defendant refused to accept the money tendered. Thereupon, the respondent instituted the suit out of which this appeal has arisen to redeem the usufructuary mortgage of 1940. The District Munsif of Madura decreed the suit and this decision was confirmed on appeal by the learned Subordinate Judge of Madurai. There was a second appeal which was dismissed by Rajagopalan J. It is against this decision that the present Letters Patent appeal has been filed.
(2.) Mr. K. S. Sankara Aiyar learned counsel for the appellant pressed upon us only two points. The first was that the suit should have been dismissed because a necessary party viz.) Syed Ismail, the original mortgagor had not been made a party to the suit. On this point Rajagopalan J. held that Syed Ismail was no doubt a necessary party in the sense that it would have been much more convenient to all the parties if he had been on record but the failure to add him did not prevent relief being granted to the parties on record who were entitled in law to such relief as could be granted without affecting the rights of parties not on record.
(3.) The other point related to the plaintiff's claim for mesne profits from the date of the tender of the mortgage money. The arguments of learned counsel for the appellant was that inasmuch as the entire purchase money had not been paid to Syed Ismail, the vendor, he was entitled to continue to be in possession till he had been fully paid and as he held a mortgage from the vendor, he could rely upon his vendor's right to remain in possession and non-suit the plaintiff in his action for redemption. Before this contention can succeed the plaintiff's counsel realised that he would have to maintain that the vendor's lien for the unpaid purchase money would entitle the vendor to remain in possession till he had been paid the entire purchase money. In support of this contention, he cited to us an early decision of a Division Bench in -- 'Subramania Ayyar v. Poovan', 27 Mad 28 (A); in which the learned Judges expressed the view that the vendor had a right to retain possession until the purchase money was paid and the vendor's lien extinguished by such payment. This view however did not find acceptance in later decisions of this Court: See --'Velayuda v. Govindasamy', 30 Mad S24 (B);--'Velayutha v. Govindasami', 34 Mad 543 (C) and -- 'Kri-shnamma v. Mali', AIR 1920 Mad 164 (D). In a recent ease which came up before Somayya J. in -- 'Poomalai v. Annamalai', AIR 1944 Mad 124 (E) the learned Judge followed the rulings in -- '34 Mad 543' (C) and -- 'AIR 1920 Mad 164' (D) as laying down the correct principle so far as this Court was concerned, though other Courts have taken a different view. With respect we accept the law as laid down in -- '34 Mad 543' (C) and -- 'AIR 1920 Mad 164' (D). It, follows that the appellant was not entitled to refuse the tender lawfully made by the respon-dent because he was not entitled to remain in possession on the ground that the vendor had not been paid the entire purchase money by the respondent. The appellant would therefore be liable for mesne profits from the date of the tender as his possession must be deemed to Venkataperumal Naidu vs. M. Rathnasabhapathi Chettiar (19.02.1952 -MADHC) Page 3 of 3 perumal Naidu vs. M. Rathnasabhapathi Chettiar (19.02.1952 -MADHC) Page 3 of 3 be wrongful from and after that date.;

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