BALASUBRAMANIA NADAR Vs. SIVAGURU ASARI

JUDGEMENT

(1.) The facts necessary for determining the question which has been argued in this appeal may be put quite shortly thus : In February 1873 there was a mortgage of a house by the Plaintiff's vendor to the 1 defendant's predecessor in title (Exhibit I). In June of the same year there was a transaction (Exhibit II) between the same parties under which a further advance was made by the 1st defendant's predecessor in title. In 1889 there was a sub-mortgage by the 1st defendant's predecessor to the and defendant's predecessor in title. In 1904, the plaintiff purchased the equity of redemption. With regard to Exhibit II the Munsif held that the instrument was a mortgage and decided in favour of the 2nd defendant. The lower appellate court took the view that it was neither a charge nor a mortgage and accordingly decided against the 2nd defendant's contention that he was entitled to be redeemed in the plaintiff's suit.

(2.) Before passing to the question of the legal effect of Exhibit II, I propose to say one or two words with regard to the general question which was raised and that is to say, as to the power or right of the 2nd defendant to insist upon his being redeemed, and for the purpose of dealing with this question, I assume that Exhibit II amounts to a mortgage and I also assume that the law of limitation places no obstacle in the way of the 2nd defendant.

(3.) Now Section 61 of the Transfer of Property Act says that a mortgagor seeking to redeem any one mortgage shall, in the absence of a contract to the contrary, be entitled to do so without paying any money due under any separate mortgage made by him or by any person through whom he claims, or property other than that comprised in the mortgage which he seeks to redeem. That section does not say so, in so many words, but I think the inference is clear, that where the property is the same the subsequent mortgagee is entitled to insist on being redeemed.