Chellakutti Naicken vs Vengappa Pillai

Devadoss, J.—The only point argued in this second appeal is that the mortgage, in question is an anomalous mortgage, and, therefore the provisions of Section 98 of the Transfer of Property Act apply and reliance is placed upon the case reported as Pate Muhamad v. Davood (1915) 39 Mad. 1010 for the purpose of construing the document as an anomalous mortgage. Beading the suit document as a whole, it is quite clear that) the parties intended to create an ordinary possessory mortgage. The only condition added is that should the mortgagor fail to pay the mortgage amount within a certain time the transaction should be treated as a sale. Adding a clause of this kind to an ordinary possessory mortgage would not make it an anomalous mortgage. The clause puts a clog on the equity of redemption. That by itself would not convert an ordinary possessory mortgage or a usufructuary mortgage into an anomalous mortgage. The case, Pate Muhamad v. Davood (1915) 39 Mad. 1010 is distinguishable on the facts. There the words are, "if they do not act according to those conditions, they will surrender the house and the deed treating the transaction as a sale." That shows evidently that possession did not pass to the mortgagee but remained with the mortgagor. Here possession was given to the mortgagee. For the respondent reliance is placed upon a recent decision of the Privy Council reported in Muhammad Sher Khan v. Raja Seth Swami Dayal AIR 1922 P.C. 17. There their Lordships held that the provisions of Section 60 of the Transfer of Property Act are imperative and that no mortgagor can lose his right to redeem even in the case of an anomalous mortgage. Granting for argument''s sake that this mortgage is to be read as an anomalous mortgage the decision of their Lordships makes it quite clear that the equity of redemption is not thereby lost. In Second Appeal No. 2096 of 1920 a Bench of this Court held that the equity of redemption is not lost even in the case of anomalous mortgage.

The second appeal fails and is dismissed with costs.