NARAYANASWAMI CHETTIAR Vs. VELLAPPA UDAYAR
LAWS(MAD)-1953-11-12
HIGH COURT OF MADRAS
Decided on November 23,1953

NARAYANASWAMI CHETTIAR Appellant
VERSUS
VELLAPPA UDAYAR Respondents

JUDGEMENT

Rajamannar, C.J. - (1.) This appeal was originally heard by Chandra Reddi J. who directed it to be posted before a Bench as it raised a question of importance relating to the interpretation of Section 9-A, Sub-section (7), Clause (ii) (a), Madras Agriculturists Relief Act. , The facts necessary for the disposal of this appeal are as follows: On 2-7-1925 one Seviyappudayar acting for himself and on behalf of his minor son Vellayapudayar executed a usufructuary mortgage for Rs. 1000 in favour of Narayanaswami Chettiar, Ex. A-1. It comprised 27 items. A few of these items were sold subsequently by Seviyappudayar to one Kandaswami Udayar by a sale deed dated 30-11-1935. The purchaser was directed to discharge the mortgage. Kandaswami Udayar, in his turn, conveyed the properties purchased by him to Vellayappudayar, the son of Seviyappudayar, by a deed 17-6-1943. Vellayappudayar filed in the Court of the District Munsif of Tirukoilur a petition under Sections 9-A and 19-A of the Madras Agriculturists Relief Act praying that the debt due to Narayanaswami Chettiar, the usufructuary mortgagee, may be scaled down and the amount due may be determined. Seviyappudayar, the original mortgagor, the petitioner's father, was added as the second respondent. The main plea of the mortgagee-first respondent was that the petitioner was not entitled to the benefit of the provisions of Section 9-A on the ground that Subsection (7) (ii) (a) applied to the same. Both the District Munsif and on appeal the learned District Judge held that the case did not fall within the said clause and granted relief to the petitioner. The mortgagee-first respondent in the petition is the appellant before us.
(2.) Section 9-A was added to the original Act by the Amending Act 23 of 1943. This section enacts special provisions in respect of usufructuary mortgages. Before its enactment they were dealt with in Section 10, Sub-section (2) of the Act. Under Clause (i) of that sub-section nothing contained in Sections 8 and 9 affected "any mortgage by virtue of which the mortgagee is in possession of the property mortgaged, where no rate of interest is stipulated as due to the mortgagee". By the Amending Act the following words were added to Section 10(2) (i) namely, "except to the extent provided for in Section 9-A". Section 9-A(i) confers on the mortgagor a right to redeem the property notwithstanding that the time, if any, fixed in the mortgage deed for redeeming the mortgage has not arrived, in the case of usufructuary morlgages executed at any time before 30-9-1947. Subsections (2) and (3) enact the substantial provisions for the discharge and scaling down of usufructuary mortgages. In cases where the usufructuary mortgagee has been in possession for a period of less than 30 years provision is made for redemption by paying a lesser amount varying with the period during which the mortgagee was in possession (Sub-section (2) ). Under Sub-section (3) possession of the mortgaged property by the mortgagee for an aggregate period of 30 years or more operates as an absolute discharge of his mortgage debt. Sub-sections (4), (5) and (6) deal with miscellaneous matters like improvements, lease-back, etc. Sub-section (7) exempts certain usufructuary mortgages from the operation of the provisions of Sub-sections (2) to (6) of Section 9-A. In so far as ifc is material for this appeal that sub-section runs thus: "(ii)(a) Where during the period after the 30th September 1937 and before the 30th January 1948, the equity of redemption in the property subject to the usufructuary mortgage has de volved 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." The significance of the two dates is this 30-9-1937 is the crucial date fixed under the original Act IV of 1938. 30-1-1948 is the date of the introduction in the Assembly of the Amending Bill of 1948. In the present case the transfer from the mortgagor to Kandaswami Ulayar is in 1935, that is, outside the period mentioned in Subsection (7)(ii)(a), but the transfer by Kandaswami Uda-yar to Vellayappudayar is in 1943, that is, within the said period.
(3.) We entirely agree with the following observation of Subba Rao J. in -' Sanyasappanna v. Appalaswami', (A), where he had occasion to deal with this sub-section: "But the section has not been artistically drafted and has lent ample scope for conflicting arguments". The language is obscure and ambiguous in many points and the intention of the Legislature is far from clear. But this does not relieve us of the duty to construe it to determine whether this case falls within that Clause (7)(ii)(a). We have in this case first a transfer of a part of the equity of redemption by the mortgagor before the period mentioned and that transfer will therefore fall outside the scope of Clause (a). We have next further another transfer by the transferee from the mortgagor to the first respondent in this appeal. This devolution has taken place no doubt during the material period by a transfer 'inter vivos'. This transfer however is not from the original mortgagor. The question is whether it is from a person deriving title from or through the mortgagor otherwise than by a transfer 'inter vivos'. The only answer to this question can be, it is not. It is from a person deriving title from the mortgagor by a transfer 'inter vivos'. The result is, the case falls outside the scope of Sub-section (7)(ii)(a). To sum up the position, there is no devolution from the original mortgagor during the material period between 30-9-1937 and 30-1-1948. The devolution during this period is from a person deriving title from the mortgagor by a transfer 'inter vivos'. In terms of the section there is no devolution from a person deriving title from the mortgagor otherwise than by a transfer 'inter vivos'.;


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