IYATHURAI AIYER Vs. KUPPAMUTHU PADAYACHI

JUDGEMENT

(1.) Plaintiff, the father, and his son gave a usufructuary mortgage of certain properties. Subsequently there was a division between father and son. The father redeemed the whole of the properties and leased them to the present defendant, who in Court-sale purchased the son s share since his lease. The suit was to recover possesaion based on the lease.

(2.) The District Munsif decreed the suit. The Subordinate Judge, we think very properly, directed a partition of the property between the plaintiff and the defendant. The real question before us is whether the plaintiff is entitled to anything more than interest from the defendants on the moiety which he paid to the mortgagee. Mr. Purushothama Aiyar relies on Asansab Ratuthan v. Vamana Rau 2 M. 223 : 1 Ind. Dec. (N.S.) 427 and Nainappa Chetti v. Chidambaram Chetti 21 M. 18 : 7 Ind. Dec.(N.S.) 369 for the proposition that a party redeeming the whole property is entitled to stand in the shoes of the mortgagee. But Section 95 of the Transfer of Property Act is clear that the person redeeming is not entitled to the rights of the mortgagee, but only to a charge for the excess sum he paid. As regards Asansab Ravuthan v. Vamana Rau 2 M. 223 : 1 Ind. Dec. (N.S.) 427, it is enough to say that that decision was passed before the Transfer of Property Act. As regards Nainappa Chetti v. Chidambaram Chetti 21 M. 18 : 7 Ind. Dec.(N.S.) 369, it was a case of simple mortgage. Consequently the question whether the person redeeming could obtain higher rights than that of a charge holder was not necessary for consideration in that case. In the face of the language of Section 95 of the Transfer of Property Act we are unable to give effect to the appellant s contention.

(3.) Another point has been raised regarding the plaintiff s rights to mesne profits since the expiry of the lease in 1912 and before possession was surrendered to him tinder the decree of the Court. Defendant contends that he was in possession only of the moiety purchased by him. The Subordinate Judge has not dealt with the question. We must ask him to submit a finding whether the defendant was in possession of the moiety now decreed to the plaintiff and if so, what is the amount of mesne profits payable to him in respect of that half from July 1912 to the date he took possession.