P.R.M.P.L.R.M. Palaniappa Chettiar vs K. Periaswami Konar and Another

Krishnaswami Aiyangar, J.—The only question that arises for consideration in this appeal is whether the mortgage deed sued upon contains

a personal covenant on the part of the mortgagor enforceable by the mortgagee. On the 9th October, 1926 the first respondent executed in favour

of the appellant a deed of othi (usufructuary mortgage) for a consideration of Rs. 1,000 received by the mortgagor. The 2nd respondent is the

purchaser of the suit property subject to the mortgage. The document contains the following covenants:

Therefore, in lieu of interest for the said amount, you shall enter upon the undermentioned properties and enjoy the same for a period of seven

years from this date, under the right of usufructuary mortgage with possession being entitled to both the varams. In any year after the expiry of the

stipulated period I shall redeem by giving notice in Panguni, and paying money in Chitrai.

The appellant instituted the suit out of which this appeal has arisen for enforcing the mortgage by sale of the mortgage property. In the absence

of a personal covenant, an usufructuary mortgagee as such has no right to ask for such a relief. The District Munsif of Devakottai, who tried the

suit, was of opinion that the mortgage deed did contain a personal covenant and accordingly decreed the suit. The respondents preferred an appeal

to the Subordinate Judge of Devakottai. The Subordinate Judge differed from the District Munsif and held that the mortgage did not. import a

personal covenant. In this view he reversed the decision of the District Munsif and dismissed the suit. The appellant then filed a second appeal to

this Court, and it was heard by Wadsworth, J. The learned Judge concurred in the decision of the Subordinate Judge and accordingly dismissed

the second appeal. On leave granted under Clause 15 of the Letters Patent, this appeal has been preferred by the appellant. On his behalf, his

counsel has once again urged that on a true construction of the deed it must be held to include a personal covenant. This as we said is the only

question that has to be decided.

The deed is in Tamil and the words which are alleged to contain the personal covenant are set out in the opening paragraph of the judgment

under appeal. Its effect may be expressed as follows. The mortgagee was to have the right of enjoying the property undisturbed for a period of

seven years certain. During that period, the mortgagor was not to have the right to redeem. After the expiry of the period the mortgagor could, if he

chose, redeem in any subsequent year. But this option cannot be exercised except by giving notice of redemption in the Panguni previous and

paying the mortgage money in the Chittrai, following.

There are no words in the deed casting an obligation on the mortgagor to pay and redeem, capable of being enforced at the instance of the

mortgagee. The language employed, only reserves an option to the mortgagor but if he desires to exercise it, he can do so only by following the

procedure indicated, and not otherwise. If he does not however choose to exercise the option the deed will remain an ordinary usufructuary

mortgage, and the mortgagee must be content with retaining possession of the mortgage property until redemption by payment of the mortgage

money. In this type of mortgage there is ordinarily no personal covenant imported and the mortgagee has no right to sue for sale. If therefore in any

case it is contended that there is such a covenant, it lies upon the party so contending to make it out from the language used in the document. That

is not the case here. We are therefore of opinion that the judgment of Wadsworth, J., is correct.

In the result the appeal fails and is dismissed with costs.