MADEPALLI SANYASAPPANNA AND ORS. Vs. SIRIPURAPU APPALASWAMI AND ORS.
LAWS(MAD)-1952-11-28
HIGH COURT OF MADRAS
Decided on November 18,1952

Madepalli Sanyasappanna And Ors. Appellant
VERSUS
Siripurapu Appalaswami And Ors. Respondents

JUDGEMENT

Subba Rao, J. - (1.) THE only question in this civil miscellaneous second appeal is whether the usufructuary mortgage deed dated 16 -4 -1908 has been completely discharged under the provisions' of Section 9 -A, Madras Agriculturists' Relief Act. One Audinarayana executed a usufructuary mortgage deed, Ex. D -1, dated 16 -4 -1908, in favour of Suryanarayana, Appalanarasimhulu, Narasiah and Chiranjeevulu. The sons of the mortgagor sold the equity of redemption to one Appalanarasimhulu and Venkata Narasimhulu under Ex. P. 3 dated 24 -2 -1920. The heirs of Venkata Narasimhulu sold their interest in the mortgage to Appalaswami under Ex. P. 2 dated 28 -10 -1945. Venkataramanayya is the heir of Appalanarasimhulu. Appalaswami and Venkataramanayya have therefore become the owners of the equity of redemption. Appalaswami filed O. P. No. 33 of 1948 on the file of the District Munsif, Vizianagaram under Section 19 -A of the Madras Act 4 of 1938 to declare the sum due under the mortgage deed dated 16 -4 -1908. To that application Venkataramanayya, the owner of the half share in the equity of redemption was made respondent 5. The original mortgagees having died, their legal representatives were impleaded as respondents 1 to 4. The learned District Munsif, and in appeal, the learned District Judge, Vizagapatam, held that the mortgage -debt was completely discharged under Section 9 -A of the Act. The respondents, i.e., the legal representatives of the original mortgagees, prefer the above appeal.
(2.) LEARNED counsel for the appellants contended that as the petitioner purchased the interest of Venkata Narasimhulu on 28 -10 -1945, so far as he was concerned, the debt is not discharged under the provisions of Section 9 -A. The relevant provisions of Section 9 -A may now be read: "Section 9 -A (3): Where a usufructuary mortgagee has been in possession of the property mortgaged to him for an aggregate period of thirty years or more, then, notwithstanding anything contained in Sections 8 and 9 or the fact that the time, if any, fixed in the mortgage deed for redeeming the mortgage has not arrived, the mortgage -debt shall be deemed to have been wholly discharged, with effect from the expiry of such period, or where such period expired before the commencement of the Madras Agriculturists' Relief (Amendment) Act, 1948, with effect from the commencement of that Act." "Section 9 -A (7): Nothing contained in this section except Sub -section (1) shall apply to any usufructuary mortgage - (ii) in respect of property situated in any other area in the cases mentioned below: (a) Where during the period after 30 -9 -1937 and before 30 -1 -1948, the equity of redemption in the property subject to the usufructuary mortgage has devolved either wholly or in part on a person by or through a transfer 'inter vivos' either from the original mortgagor or from a person deriving title from or, through such mortgagor otherwise than by a transfer 'inter vivos', then, to the whole or such part, as the case may be." If a transaction conveying the equity of redemption is effected between 30 -9 -1937 and 30 -1 -1948 in the manner prescribed in Section 9A(7)(ii)(a), the mortgage is taken out of the operation of Section 9 -A, i.e., such a mortgage will not be deemed to be discharged under the section. But the section has not been artistically drafted and has lent ample scope for conflicting arguments. The discussion in the Legislative Assembly at the time of enacting of the aforesaid clause does not afford any clue and it is also not permissible to search for any light in that quarter. I would therefore construe the provisions of the section strictly in accordance with the plain meaning of the words used therein. Omitting that part of the clause which is irrelevant for the present purpose, it reads: "the equity of redemption x x x x has devolved either wholly or in part on a person by or through a transfer 'inter vivos' from a person deriving title from or through such mortgagor otherwise than by a transfer 'inter vivos'."
(3.) Devolution of a property otherwise than by a transfer 'inter vivos' may include court -sales, succession, survivorship, etc. To get an exemption, therefore, a person should have acquired a title to the equity of redemption by a transfer 'inter vivos' from another person who in his turn acquired a right to the same by one of the modes mentioned above, namely, succession, survivorship, court -sale etc. To illustrate, A is the owner of the equity of redemption. A dies and B succeeds to him. B sells the equity of redemption to C between 30 -9 -1937 and 30 -1 -1948. C comes directly under this exception and therefore his usufructuary mortgage -debt will not be deemed to have been discharged wholly or in part under the provisions of Section 9 (A) of the Act. To take a different illustration, if B sells the equity of redemption to D before 30 -9 -1937 and D sells it to C between the aforesaid two dates, can it be said that the equity of redemption has devolved on C through a transfer 'inter vivos' during the aforesaid period from B, the heir of A? In the second illustration, the equity of redemption has not devolved during the prescribed period on a person through a transfer 'inter vivos' from a person who acquired the property otherwise than by a transfer 'inter vivos'. The first transfer from the heir, i.e., the sale of B to D, may come within the terms of the clause; but that took place prior to 30 -9 -1937. The second sale which took place between the aforesaid two dates would only be by a transfer 'inter vivos' from a person who himself got it by transfer 'inter vivos'. That is what happened in this case.;


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