Sale of equity of redemption in Court auction covered by sub-section (10(ii)(a).

After having heard learned counsel for the appellant for some time and having considered some of the decisions bearing on the point, we think that there should be an authoritative ruling on the construction of section 9-A (10) (ii) (b) of the Madras Agriculturists Relief Act in its application to facts such as are present in the case before us. This reference however, should not be understood to mean that we are convinced that any of the decisions cited to us requires reconsideration. The question which has been raised in this case is likely to arise in numerous other cases relating to usufructuary mortgages, and the language of the provision referred to above is by no means clear In the circumstances, we think that the best course is to post the Letters Patent Appeal before a Full Bench for decision. Ordered accordingly.

In pursuance of the order of reference the appeal then came on for hearing before a Full Bench (Rajamannar, C.J., Ramachandra Iyer and Venkatadri, JJ.).

R. Sundaralingam, for Appellant.

R. Gopalaswami Ayyangar and V. Ratnam, for Respondents.

The Judgment of the Court was delivered by

Ramachandra Iyer, J.-This appeal, which involves the determination of certain important questions in the construction of section 9-A of the Madras Agriculturists Relief Act, 1938, (referred to as the Act) arises out of a suit for redemption of an usufructuary mortgage instituted by the 1st respondent. One Kandaswami, who was the original owner of the properties concerned in the suit, created thereon in favour of the appellant on 26th April, 1927, a mortgage with possession for securing a loan of Rs. 6,000. The document of mortgage stipulated that the mortgagor was to pay and redeem the properties within a period of three years, and that the mortgagee was to retain possession of the properties enjoying the usufruct till redemption. The mortgagee who obtained possession, leased back the properties to the mortgagor.

On the day following the mortgage, on 27th April, 1927, Kandaswami executed a second but simple mortgage over the same properties in favour of Janaki the daughter of the appellant. Some years later, the appellant who borrowed certain monies from the 8th defendant executed a simple mortgage in favour of the latter over some of her properties, one of the items mortgaged being the first mortgage right of the appellant over the suit properties. That document is dated 19th April, 1941. Thus a sub-mortgagee was created over the suit property on that day.

In the same year Janaki filed a suit on the basis of the mortgage (second mortgage in her favour) O.S. No. 273 of 1941 on the file of the District Munsif’s Court, Mannargudi. In due course she obtained a decree, and brought the suit properties to sale. The 1st respondent purchased the suit property in the Court sale that ensued, subject to the usufructuary mortgage dated a6th April, 1927, for a sum of Rs. 3,000. Thereafter he, as the owner of the equity of redemption, instituted the suit out of which this appeal arises.

In the plaint the first respondent claimed that he was an agriculturist entitled to the benefits of the Act, and that in view of the fact that 27 years had elapsed since the date of the mortgage, the mortgage amount payable would be only Rs. 400 (2/30 of Rs. 6,000), the balance of the debt having been statutorily discharged by the provisions of section 9-A of the Act. The appellant did not deny the fact that the 1st respondent was an agriculturist, but she contested the claim to redeem at the reduced amount on the ground that the scaling down provisions contained in the Act would not apply to the present case by virtue of the exemption provided in section 9-A (10) (ii) (a) and (b). It was also claimed that the first respondent had defaulted in the payment of rent, and that at least 3 years rent which was in arrears should be directed to be paid as a condition of redemption. The learned Subordinate Judge accepted the first respondent’s case that the mort