ANGAMMAL Vs. PUNNAMMAL

JUDGEMENT

(1.) On the 26 August, 1912, one Kesavan granted to the first defendant a usufructuary mortgage of the property in suit. The deed provided that if the mortgage was not redeemed within two years the mortgagee should become the absolute owner of the property. The mortgagor defaulted in payment of the amount due under the mortgage and the first defendant considered himself to be the absolute owner. On the 14 February, 1931, the first defendant and his son purported to mortgage the property to one Devasikamani Mudaliar, who on the 29 August, 1932, assigned the mortgage to the third defendant. The third defendant instituted C. S. No. 121 of 1934 in this Court to recover from the first defendant the amount due on the mortgage. He obtained a decree and in due course the property was put up for sale in the execution proceedings. The plaintiff was the purchaser. When he went to take possession he was resisted by the fourth defendant, the son of Kesavan, and the fifth defendant, who is the son of the fourth defendant. On the 21 July, 1936, the fourth and fifth defendants purported to sell the property to the sixth and seventh defendants. This led the plaintiff to file in the City Civil Court the suit which has given rise to this appeal. He sought a declaration of his title to the property or in the alternative a decree for the return of the money which he had paid for its purchase. The City Civil Court dismissed the suit, but on appeal to this Court it was decreed by Burn, J. The present appeal is under Clause 15 of the Letters Patent from the judgment of the learned Judge. The appellants are the legal representatives of the sixth defendant and the seventh defendant.

(2.) The learned Judge considered that the clause in the deed of mortgage of the 26 August, 1912, which purported to confer upon the first defendant an absolute title in the event of the mortgagor failing to pay the mortgage debt within two years, had the effect of making his possession adverse at the expiration of the two years and as more than twelve years had elapsed Kesavan's heirs had lost all interest in the property. Burn, J., relied on the decisions of this Court in Usman Khan V/s. Dasanna and Kandaswami Pillai V/s. Chinnabha (1920) 40 M.L.J. 105 : I.L.R. 44 Mad. 253. When those decisions are examined, it; is clear that they embody quite a different principle. The principle which does apply in this case is expressed in the decision of the Privy Council in Meharban Khan V/s. Makhena (1930) 58 M.L.J. 714 : L.R. 57 I.A. 168 : I.L.R. 11 Lah. 251 (P.C.) and in Perayya V/s. Venkata (1888) I.L.R. 11 Mad. 403 and Srinivasa Iyengar V/s. Radhakrishna Pillai (1913)26 M.L.J. 47 : I.L.R. 38 Mad. 667. Unfortunately these cases were not brought to the notice of the learned Judge.

(3.) Section 60 of the Transfer of Property Act provides that the right to redeem a mortgage can be extinguished by act of the parties, and this provision is to be borne in mind in considering Usman Khan V/s. Dasanna and Kandaswami Pillai V/s. Chinnabha (1920) 40 M.L.J. 105 : I.L.R. 44 Mad. 253. In the former of these two cases the mortgage deed provided that, in default of the payment of the mortgage debt within the time fixed, the mortgagee should take possession of the property as the absolute owner. Default was made in the payment of the mortgage debt, but the mortgagee did not go into possession by reason of the mortgage deed, but as the result of an agreement which was entered into after the period stipulated in the mortgage deed for payment. This further document provided for the payment of Rs. 250. The Court held that by reason of this further agreement there was a relinquishment by the mortgagor of all rights to the property. The Court did not place any reliance on the mortgage deed. The decision that the mortgagor had lost title by adverse possession of the mortgagee was based entirely on the subsequent agreement which was lawfully entered into under Section 60 of the Transfer of Property Act. The facts in Kandaswami Pillai V/s. Chinnabha (1920) 40 M.L.J. 105 : I.L.R. 44 Mad. 545 are analogous. There at a date subsequent to the mortgage, there was an oral agreement whereby the mortgagee retained possession of a portion of the mortgage property as the absolute owner in satisfaction of the mortgage debt. He was in adverse possession for more than twelve years, and following Usman Khan v. Dasanna , the Court held that the suit by the mortgagor for redemption of the property was out of time.