Kumaraswami Padayachi vs Govindaswami Padayachi

Subba Rao, J.—The only question in this second appeal is whether Section 9-A, Madras Agriculturists Relief Act, (4 of 1938) applies to

the transaction in question. The scheduled properties wore usufructuary mortgaged on 5-6-1927 in favour of the respondent''s father for a sum of

Rs. 500. There was a condition in the document that in case the mortgage debt was not redeemed within five years, the mortgagee would become

the owner. The mortgagor treating that condition as a clog on the equity of redemption applied for redemption after depositing the proportionate

amount u/s 9A of the Act. Both the Courts found that the condition was a clog on the equity of redemption and therefore the creditor continued to

be in possession only as mortgagee. On that finding the provision of Section 9-A of the Act directly applies. Section 9-A reads:

Where a usufructuary mortgage was executed at any time before 30th September 1947 and the mortgagee is in possession of the property

mortgaged to him, the mortgagor shall be entitled to redeem the property notwithstanding that the time, if any, fixed in the mortgage for redeeming

the mortgage has not arrived.

The learned counsel for the mortgagee contended that whatever might be the legal effect of the document he was in possession only after the expiry

of five years not in his capacity as mortgagee but only in his capacity as vendee. His animus is not the decisive factor for the application of the

provisions of Section 9-A. If he was a usufructuary mortgagee and was in possession of the property mortgaged to him the'' provisions of Section

9-A are attracted. The Courts found -- and it cannot be disputed -- that notwithstanding the aforesaid conditions be continued to be a mortgagee

and he was in possession in his capacity only as mortgagee. Section 9-A therefore applies and the decision of the Courts below is correct. There is

no dispute with regard to the correctness of the amount.

In the result, the second appeal fails and is dismissed with costs. No leave.