SASHI AMMAL Vs. PS. AR. AR. ARUNACHALAM CHETTIAR BY AGENT, SIVARAMAN CHETTIAR

JUDGEMENT

(1.) THE statement of the plaintiff's claim as embodied in the decree in O.S. No. 452 of 1933 was " defendants have executed a security bond charging the suit properties for the suit debt and other debts. The plaintiff prays for a charge on the plaint properties." After decreeing the claim on the promissory note executed by defendants 1 and 2, the operative portion of the decree with reference to the charge referred to above ran:

(2.) THE decree -holder filed E.P. No. 448 of 1943 to realise the amount decreed by the sale of the properties on which a charge had been created. On 7th April, 1944, the decree -holder applied in E.A. No. 445 of 1944 to reduce the upset price. In opposing that application the fifth defendant, whose position was that of a usufructuary mortgagee under a deed of mortgage for Rs. 1,500 executted on 26th August, 1931, contended that that mortgage had been discharged on 15th Decemher, 1943. A receipt from the fifth defendant acknowledging payment of the mortgage, debt of Rs. 1,500 was filed into Court. It was this right of a usufructuary mortgage that had been included as one of the items charged in the security bond executed by defendants 2, 3 and 5. Quite obviously the second defendant, the original mortgagor, had notice of the security bond, which in effect constituted the plaintiff a sub -mortgagee. On 19th July, 1944, the Court held that the payment of Rs. 1,500 did not affect the right of the plaintiff who was a sub -mortgagee and that he could bring the property, i.e., the rights of the usufructuary mortgagee, to sale. The upset price was reduced.

(3.) THE main question that arose for determination in the Courts below and arose again before me was whether the appellant was an agriculturist within the meaning of Section 19 of Madras Act: IV of 1938, I agree with the view taken by the Courts below that the appellant had no further saleable interest in the property on 29th May, 1944; and it was not the ease of anyone that apart from her interest as usufructuary mortgagee she had any further interest which would make her an agriculturist.