Thirumani Chettiar vs Veluswami Naicker and others

Veeraswami, J.—In both the appeals, the mortgagee is the appellant who sued to enforce the personal covenant in the mortgage on the

assumption that such a covenant existed in the deed. The Courts below held that the deed did not admit of any such construction and were agreed

in dismissing the suit. The second appeal arises out of that suit. The other appeal is from a suit instituted by the respondent mortgagor for

redemption, which was decreed. The mortgage amount has been deposited and the mortgagor has been put in possession. There is, therefore,

nothing further to be done and no point has been urged, in fact there is none, in the appeal. No doubt, the decree in favour of the mortgagor

granted him mesne profits, but in the circumstances the propriety of the decree cannot be assailed. The appeal is, therefore, dismissed. In view of

what I have stated above, the second appeal has more or less become academic except in regard to costs. What is contended by the appellant is

that his suit being earlier to the redemption suit and as there was, according to him, a personal covenant to pay in the mortgage deed, he was

justified in instituting a suit, and, therefore, he is entitled to costs.

The deed is clear that it created an usufructuary mortgage over the property. Whether it contains a personal covenant to pay, and therefore the

mortgage is an anomolous one, depends on a construction of the material words used therein, which are :

Laterally translated, this means that after expiry of the time of redemption, 30th Ani 1124 Andu, on receipt of the amount the land and this

document will be handed to the mortgagor by the mortgagee, but if by that time there is default in payment, the money may be paid on 30th Ani of

any Andu and then the land and the document shall be handed by the mortgagee to the mortgagor. The amount was not paid by the first date fixed

for redemption. What is, therefore, the effect of the second clause in the language extracted has to be ascertained. If the nature and elements of an

usufructuary mortgage, by which is meant a mortgage with possession, are borne in mind, a clause like that may not find a place in such a

mortgage. But, as a matter of fact, possessory mortgages in this part of the country involving agricultural lands do frequently contain such a clause,

having as its object that the mortgages in possession should not be disturbed from it in the middle of an agricultural season. That is why the

stipulation is made that redemption shall be on a particular date of any year. But the question is if, inasmuch as the clause under construction

speaks of repayment on the terms mentioned, it amounts to a covenant to pay, apart from the obligation arising out of the usufructuary mortgage

itself. Looking at the wording of the clause, it seems to me that it proceeds upon the assumption of an obligation to pay. But the intention of the

clause itself appears to be not related to repayment, but the time at which it should be made to suit exigencies of agricultural operations on the land

"" leaves an option to the mortgagor to choose the year of payment and does not, to my mind, raise a personal covenant to pay, But the restriction

upon the option with reference to the date and month is conceived for the benefit of the mortgagee. While securing that benefit, the language had

necessarily to refer to the option and the restriction thereto. I am inclined to think, as I read the language extracted in the context of the entire

document, that it does not justify reading into it a personal covenant to pay.

But, in order to facilitate a proper construction, learned Counsel for the appellant has invited my attention to certain decisions of this Court.

Precedents in such context will have their limitations because rarely the problem of construction is identical. Languages in documents vary and they

have also to be read in the context and surrounding circumstances in order to gather the true intention. Nevertheless, decisions are frequently cited

and are looked into as they are of undoubted value and will show how the question of construction is approached and decided.

The language in Kangaya Gurukal v. Kalimuthu Annavi 27 Mad. 526 (F.B.) appears to bear a resemblance to the one under consideration here.

The document in that case said that the mortgagor will pay the amount on a particular date and redeem the land, and went on :

If on the date so fixed the amount be not paid and the land recovered back, in whatever year we may pay the Rs. 200 in full on the 30th Panguni

of any year then you shall deliver back our lands to us.

In the opinion of the Full Bench, this clause meant a personal covenant to pay and that the mortgage was, therefore, an anomolous one.

Observed the learned Judges :

The second sentence of the extract provides that in the event of the mortgagor not paying on the due date, but subsequently, he may pay only on

the corresponding day of a future year, and there shall then be an obligation on the part of the mortgagee to give up the land......

The mortgage is therefore a combination of a simple and an usufructuary mortgage within the meaning of S. 98, Transfer of Property Act.........

The reason for this view appears to be that the Court considered that the right to cause the mortgaged property to be sold in default of payment

was implied in that language. Here also, the language is practically the same, and I must confess that it is difficult to make any distinction and

distinguish Kangaya Gurukkal v. Kalimuthu Ammavi 27 Mad 526 (F.B.). Though on the language used in the document I am, for my part, satisfied

that it is difficult to imply a covenant to repay and regard the mortgage as an anomolous one, the opinion of the Full Bench in that case is binding on

me. In P.R.M.P.L.R.M. Palaniappa Chettiar Vs. K. Periaswami Konar and Another, the covenant construed ran :

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 usufruotuary mortgage. With possession being entitled to both the warams. In any year after the expiry of

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

In construing the last clause, a Division Bench of this Court in that case were of the opinion:

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.

They considered that there was no room to imply a personal covenant to pay in that language. No doubt, the language used in the document in

that case is not as near, though somewhat similar, to the language used in the document under construction, in Kangaya Gurukkal v. Kalimuthu

Annavi 27 Mad 526 (F.B.). Even so, there is no reference in P.R.M.P.L.R.M. Palaniappa Chettiar Vs. K. Periaswami Konar and Another, to

Kangaya Gurukkal v. Kalimuthu Annavi 27 Mad 526 (F.B.), Muhammadhu Mamoona Labbai and Others Vs. C. Ramanatha Pillai and Others,

and S.S. Ahobala Sastriar Vs. S.P. Kalimuthu Pillai, which was affirmed in Murugesan Pillai and Another Vs. Jokki Venkatachalapathi Iyer, were,

however, concerned with a language which was clearer, and covered a personal covenant to pay, and they are, therefore, not very much apposite

to the instant case, Following the opinion of the Full Bench in Kangaya Gurukkal v. Kalimuthu Annavi 27 Mad 526 (F.B.), I must hold that the

deed in the present case contained a personal covenant to pay. That means, the Courts below were not right in their view of the document. This,

however, does not affect the result of the suit to enforce the personal covenant in view of the subsequent redemption of the mortgage. The question

then is whether the appellant in the second appeal is necessarily entitled to his costs. The question of construction is not free from doubt. As a

matter of fact, my own view of the language is not in favour of the appellant; but he has succeeded on the construction because, sitting as I am

singly, I am bound by the opinion of the Full Bench. In the circumstances, therefore, I consider that this is not a case in which I need grant the

appellant costs either here or in the Courts below. The appeal and the second appeal are dismissed with costs in neither. No leave.