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IN THE HIGH COURT OF MADRAS
K. Ambu Nair
Versus
E.C. Kelu Nair And Anr.
Decided On : 3 October, 1929
REDEMPTION SUIT - MORTGAGE - RAJINAMA DECREE - EXECUTION BARRED - FRESH SUIT FOR REDEMPTION - MAINTAINABILITY - SECTION 47, CIVIL PROCEDURE CODE - SECTION 60, TRANSFER OF PROPERTY ACT - CLOG ON EQUITY OF REDEMPTION - CONSENT DECREE - VALIDITY - RES JUDICATA - ESTOPPEL.
Fact of the Case:
Plaintiff filed a suit to redeem a mortgage. The mortgage deed was executed in 1892. In 1898, the mortgagee filed a suit for possession of the mortgaged properties and for recovery of mortgage amount. The suit was compromised and a rajinama decree was passed in 1899. The decree provided that if the mortgagor paid Rs. 31,000 within three years from the date of the decree, the mortgagor was to redeem the properties from the mortgage. In default of such payment, the mortgagee was to recover possession of the properties in execution of that decree and enjoy the same on usufructuary mortgage right. If Rs. 31,000 was paid at any time thereafter, possession was to be given up to the mortgagor together with all the mortgage right. The mortgagor failed to pay the rent as mentioned in the rajinama decree, and the mortgagee obtained possession of the properties in 1900. In 1912, the mortgagee obtained a decree on a simple mortgage of 1901. The equity of redemption was purchased by the plaintiff in 1913. The plaintiff deposited Rs. 6,115-12-0 being the amount due to the mortgagee as per decree in 1912 and redeemed the simple mortgage. The plaintiff applied in execution to get back possession of the properties as mentioned in the rajinama decree, but the defendants contended that execution was barred by limitation. The plaintiff, therefore, filed this suit to redeem the properties.
Finding of the Court:
The Court held that the present suit was maintainable and is not barred by reason of the judgment to the effect that the execution of the rajinama decree in O.S. No. 22 of 1898 was held to be barred by limitation. The Court held that the rajinama decree having been kept alive the relationship of mortgagor and mortgagee and the mortgagee having entered into possession in such a character under that decree the right of redemption is not put an end to and that the provision in that decree that execution might issue only gives a speedy and less expensive method of redemption and does not take away the right of a suit to redeem after three years which is the period of limitation for execution.
Issues: 1. Whether the present suit is maintainable? 2. Whether the suit is barred by reason of the judgment to the effect that the execution of the rajinama decree in O.S. No. 22 of 1898 was held to be barred by limitation? 3. Whether there was any admission of the plaintiff's right by the defendant to prevent the bar of limitation?
Ratio Decidendi: 1. The rajinama decree did not put an end to the relationship of mortgagor and mortgagee but on the contrary affirmed it. The decree perpetuated the relationship of mortgagor and mortgagee and did not dissolve that relationship. It enforced the right of the mortgagor under the mortgage to obtain possession, and provided for the right of the mortgagor getting back possession on payment of Rs. 31,000. 2. The ordinary incidents of that relationship are that even though a term is fixed for redemption by the parties the party is allowed to redeem within the period of 60 years provided by the Limitation Act and that any provision in the agreement which in effect limits the right to redeem by a clause that the right is to be exercised by execution (which necessarily reduces the period to 3 years) is as invalid as if there was a clause saying that if the property is not redeemed in three years the property should be lost. 3. This clause was embodied in the decree by consent of all parties. It is therefore a case where the parties have done what Section 60, T.P. Act, prohibits, In a suit to redeem it seems to us to be no defence to state that the sole remedy is the remedy by execution, which remedy the parties had no right to insert as being a clog on the equity of redemption.
Final Decision: The appeal fails and is dismissed with costs.
1. Defendant 1 is the appellant. This appeal arises out of a suit tiled by the plaintiff to redeem a mortgage. The plaintiff prays that defendant 1 may be directed to surrender possession of the properties mentioned in Sch. A to the plaint to the plaintiff on payment by him within a time to be fixed by the Court of such amount as may be found due to defendant 1 towards the usufructuary mortgage referred to in the plaint on taking an account of the amounts received by defendant 1 and the amount which he is liable for in respect of damages for waste committed on the properties and to hand over to the plaintiff all the title deeds, rent deeds and other documents connected with the property. The plaintiff also claims mesne profits at the rate of 2,000 paras of paddy per year.
2. The case for the plaintiff is that the properties described in Sch. A to the plaint originally belonged to defendant 2s tarwad, that the said properties along with two other items of property held by the tarwad on arwar or mortgage right were usufructuarily mortgaged by the tarwad to defendant 1s tarwad for Rs. 21,157-2-2 under a registered mortgage deed dated 8th December 1892 but that the properties were being enjoyed by defendant 2s tarwad as tenants after the mortgage, that defendant 2s tarwad having fallen into arrears of rent, defendant 1s tarwad filed O S. No. 22 of 1898 in the Sub-Court of South Kanara for recovery of possession of the properties and arrears of rent or in the alternative for recovery of the mortgage amount, that O.S. No. 22 of 1898 was ultimately compromised between the parties and a rajinama decree was passed on 2nd January 1899 to the effect that if Rs. 31,000 which was fixed as the amount due on the mortgage for principal and arrears of rent and costs is paid within three years from the date of the decree, the mortgagor was to redeem the properties from the mortgage, that in default of such payment the mortgagee was to recover possession of the properties in execution of that decree and enjoy the same on usufructuary mortgage right, and that if Rs. 31,000 was paid at any time thereafter, possession was to be given up to the mortgagor together with all the mortgage right, that it was also provided that for 3 years after the date of the rajinama decree the mortgagor should be enjoying the properties paying assessment thereon and pay the defendant 1s tarwad and annual rent of 2000 paras of paddy, that defendant 2s tarwad having failed to pay the rent as mentioned, in the rajinama decree, the mortgagee obtained possession of the properties on 16th March 1900, that there was a second mortgage for Rs. 1675, on which the mortgagee obtained a decree for sale of the equity of redemption in O.S. No. 44 of 1912, that in execution of a personal decree against defendant 2s tarwad the right of the mortgagor was purchased by one Subraya Kamathi in 1909 subject to the usufructuary and simple mortgage rights held by defendant 1s tarwad over the said properties and Subraya Kamathi conveyed his right to the plaintiff on 22nd April 1913, that the plaintiff who has thus become absolutely entitled to the equity of redemption deposited Rs. 6,115-12-0 being the amount due to defendant 1 as per decree in O.S. No. 44 of 1912 and redeemed the simple mortgage dated 7th December 1901, that as regards the two items of property sub-mortgaged under the deed dated 8th December 1892, they were redeemed and a portion of the mortgaged properties was acquired by the Local Fund Department and the mortgagee received two sums of Rs. 490 and 450 towards the mortgage for which credit has to be given, that the mortgagee has been committing waste by cutting timber trees and pulling down buildings etc., that he is liable for damages to the extent of Rs. 6,700 as per particulars given in the plaint which amount also is to be deducted from the amount due under the mortgage and that when the plaintiff applied in execution to get back possession of the properties as men
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