After death of life tenant mortgage can be enforced against superstructure put up by life tenant subsequent to mortgage.

This appeal comes before us for final disposal after the submission of the findings by the learned City Civil Judge in pursuance of an order of this Court, dated 1st January, 1963, †calling for a finding. The questions that arise for consideration lie in a narrow compass. The brief facts of the case are as follows:-

One A. C. Kannappa, executed a settlement deed, Exhibit B-5, dated 25th February, 1934, under which he gave a life estate to his son, Rajakannappa in an extent of land, with certain buildings, now bearing door No. 5, Nowroji Road, Chetput, the land measuring about 14 grounds 2,070 sq. feet. The vested remainder was given to minor Rajasekharan, the settlor’s grandson. Rajakannappa’s wife is the first defendant, and his son, minor Rajasekharan aforesaid, is the second defendant. The third defendant is Rajakannappa’s mother-in-law, the mother of the first defendant. Rajakannappa executed two mortgages, Exhibit A-1, dated 28th February, 1946, for Rs. 10,000 and Exhibit A-2, dated 23rd January, 1947, for Rs. 5,000 in favour of the plaintiffs, mortgaging the aforesaid property, over which he has a life interest. In the operative portion of the two mortgages, it is specially stipulated that the properties comprised in the settlement deed, the land and the building then existing as well as any future building or buildings that may be erected with all fixtures and fittings attached would remain as security for the amounts advanced under the aforesaid mortgages. In this connection, it may also be mentioned that when the first loan of Rs. 10,000 was advanced the mortgagees and the mortgagor particularly contemplated erection of buildings on the land in question. Under Exhibit B-1, dated 1st July, 1951, Rajakannappa and his wife and son executed in favour of one Chandrasekara Mudaliar, the fourth defendant in the suit, a mortgage for Rs. 5,000 comprising the land in question as well as a new construction which was put up by the mortgagor on the land in question. Rajakannappa was adjudged insolvent in Insolvency Petition No. 28 of 1953, and the Official Assignee of Madras sold in public auction under a deed of conveyance, Exhibit B-2, dated 28th December, 1953, the suit properties including the newly constructed building aforesaid and the same was purchased by the third defendant for a sum Rs. 500 subject to the mortgage of Rs. 5,000 in favour of the fourth defendant. It may be mentioned that this sale by the Official Assignee did not contain any reference to the two mortgages, Exhibits A-1 and A-2 in favour of the plaintiffs. By this time, Rajakannappa died on 28th August, 1953.

The plaintiffs filed the suit, Original Suit No. 641 of 1957 to recover a sum of Rs. 15,000 representing the balance due on the two mortgages aforesaid (giving up a portion of the claim) and the main contest relates to the question as to how far this claim is enforceable against the superstructure which was subsequently put up by the mortgagor, Rajakannappa. The claim of the fourth defendant, the mortgagee under Exhibit B-l has been satisfied and, therefore, we are not concerned with him.

† Anantanarayanan and Jagadisan, JJ.Defendants 1 to 3 contested the suit mainly on the ground that the plaintiffs cannot have any claim against the superstructure, No. 5-A, Nowroji Road, newly constructed by the mortgagor, the life tenant, and that the said new building became a part of the land itself, and that after the death of the life tenant, the remainderman, the second defendant, became the owner both of the land as well as the super-structure newly erected. The third defendant raised a further contention that in the sale deed executed (in her favour) by the Official Assignee there was no reference to the mortgages of the plaintiffs, and that she is a bona fide purchaser without knowledge of the same, as the property was sold to her subject only to the mortgage in favour of the fourth defendant. A further plea was also raised that in Original Petitio