Marturu Subbamma vs Gadde Narayya

Wallis, C.J.—I agree with the referring Judges and answer the question in the affirmative. A mortgagee does not become a usufructuary

mortgagee within the meaning of Section 58 (d) until the mortgagor has given him possession of the mortgaged property and so put him in a

position to realize his security out of the accruing rents and profits. It is because the intention is that the security shall be realised in this manner that

by Section 67 proviso (a) a usufructuary mortgagee as such is debarred from suing for foreclosure or sale under the section. A mortgagee to whom

possession has not been given is not a usufructuary mortgagee. Consequently he does not come within the proviso and is entitled to sue for

foreclosure or sale under the section in the absence of a contract to the contrary "" at any time after the mortgage money has become payable to

him."" Section 68 entitles the mortgagee to sue the mortgagor for the mortgage money ""where the mortgagee, being entitled to possession of the

property the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any

other person."" The first of these events having happened the mortgagee has become entitled to sue for the mortgage-money, or in other words, the

mortgage money has become payable to him, and he is entitled u/s 67 to sue for foreclosure or sale, in the absence of a contract to the contrary

which cannot be implied. On the contrary the fact that the mortgagor was unable to put the mortgagee in a position to realize his security out of the

rents and profits makes it only reasonable that he should be remitted to the ordinary remedies of a mortgagee by foreclosure or sale, and the

legislature has recognized this by making the mortgage money payable in this event-He has advanced his money on the security of the mortgagor''s

interest in the property, and mortgagor has fail ed to perform his part of the contract by putting him in possession and enabling him to realize his

security in that manner, and bhere is no reason why he should not be allowed to realize it by bringing the mortgagor''s interest to sale if. he so

desires or for requiring him to undergo the expense and trouble of litigation with third parties unless he is content to lose his security. These aspects

of the question appear to have been overlooked in Samayya v. Nagalingam ILR (1891) M. 174, Arunachalam Chetti v. Ayyavayyan ILR (1898)

M. 476. In Ram Narayan Singh v. Adhindra Nath Mukherji ILR (1916) C. 988 the Judicial Committee observed, ""It must also be borne in mind

that if the mortgagor be in the first instance under no personal liability, such liability may arise u/s 68(b) or (c) of the Transfer of Property Act."" As

pointed out in the order of reference, once the mortgage money becomes payable under any clause in Section 68, there can be no reason for

refusing to give effect to Section 97 which allows of a suit for foreclosure or sale ""at any time after the mortgage money has become payable

except in certain cases of which this is not one.

I accordingly answer the question in the affirmative.

Ayling, J.

I concur.

Kumaraswami Sastri, J.

I agree and have nothing useful to add to what I have said in the order of reference.