Rattaranhamy V. Appunaide Et Al.,

Present: Dalton J. and Jayewardene A J.

RATTARANHAMY .v. APPUNAIDE et al.

97-D. C. Ratnapurara, 4,607.

    Usufructuary mortgage-Agreement not to lease or mortgage-Subsequent mortgage-Bight of second mortgagee to discharge the previous mortgage-Authority.

The owner of certain property gave a usufructuary mortgage-to the defendants, covenanting that " he will not, during the continuance of this mortgage, lease or mortgage, the said premises or do any act or deed whatever, which may impeach the rents and income thereof, without the consent in writing first had and obtained."

Thereafter he gave another usufructuary mortgage to the plaintiffs, who were authorized to retain a portion of the consideration for the discharge of the previous mortgage.

Held, that the plaintiffs were entitled to redeem the mortgage granted to the defendants.

THIS was an action brought by the plaintiffs to redeem a usufructtuary mortgage granted by one Mohottihamy on September 16, 1922, in favour of the defendants to secure a sum of Rs. 350. On April 24, 1925, Mohottihamy executed a further usufructuary mortgage in favour of the plaintiffs for the sum of Rs. 1,400, of which a sum of Rs. 675 was retained in the hands of the plaintiffs for the purpose of discharging among others, the mortgage in favour of the defendants. On the defendants refusing to receive payment of the debt due to them, the plaintiffs instituted this action, bringing into Court the sum of Rs. 350. The learned District Judge dismissed the plaintiffs' action.

Navaratnam, for plaintiffs, appellant.-A debtor has the right to. pay his debt and to redeem a mortgage bond securing the debt. This right he can exercise directly or through an agent. Covenants restraining him from executing a subsequent lease or mortgage to the property hypothecated cannot be construed to mean a renunciation of the right to redeem. The debtor, in the present case, seeks to pay the debt and redeem the earlier bond through his duly constituted agent, the plaintiff. No privity of contract between the first mortgagee and the plaintiff need exist to enable the latter to act as the debtor's agent. Apart from being the debtor's agent, the plaintiff relies on the usufructuary bond in his favour. He can enforce by action his right to possess and cultivate the field mortgaged to him and get out of the way the earlier bond by payment of his mortgagor's debt.

Rajakariar, for defendants, respondent.-The mortgagor has definitely bound himself not to lease or mortgage to another. He has acted in breach of this express condition by giving the second Appunaide usufructuary mortgage. The right to redeem is, under the circumstances, personal to him and cannot be exercised by the plaintiffs.

July 3,1928. DALTON. J.-

One Mohottihamy executed a usufructuary mortgage No. 9,959 on September 16, 1922 (D 1), in favour of Appunaide and Punchi-naide,- the defendants (respondents) in this action, for a sum of Rs. 350. That bond contained the following covenant :-

" And I, the said debtor, do hereby covenant . . . . that I will not, during the continuance of this mortgage, lease or mortgage the said premises or do any other act or deed whatever which may impeach the rents and income thereof without the consent in writing first had and obtained . . . ."

On April 24,1925, Mohottihamy executed a further usufructuary mortgage No, 6,974 in favour of Rattaranhamy and Punehimenika, the plaintiffs (appellants) in this action, for the sum of Rs. 1,400. It is clear that it was raised to pay off the sum due on the first bond. The attestation clause is in the following terms :-

" And I further certify and attest that Rs. 75 out of the consideration therein expressed was paid in my presence, Rs. 675 was retained in the hands of the creditors to pay and settle mortgage bonds No. 9,959 . . . ., No. 4,956 . . . ., and No. 4,238 . . . ., and the balance was ackno

Click Here to Read the rest of this document