Tirugnana Sambanda Pandara Sannadi Avergal and Others vs Nallathambi Pillai and Others

It is urged that, upon the finding that the mortgage-debt was not wholly satisfied from the rents and profits, the suit should have been dismissed

on the ground that no right of redemption had accrued at the date of the suit and that no decree for redemption ought to have been made. In

support of this contention reliance is placed on Section 62, Clause (a) of Act IV of 1882. That clause is in these terms, ""where the mortgagee is

authorised to pay himself the mortgage-money from the rents and profits of the property"", the mortgagor has a right to recover possession of the

property, when such money is paid."" The real question is whether the words ""when the money is paid"" mean when the money is paid from rents

and profits or include a payment by the mortgagor. The context lends weight to the contention that the payment is contemplated to be made in the

mode indicated by the contract. Clause (b) also supports the contention. It premises a case in which ""the mortgagee is authorised to pay himself

from rents and profits the interest of the principal money,"" and provides for redemption ""when the term, if any, prescribed for payment of the

mortgage-money has expired and the mortgagor pays or tenders to the mortgagee, the principal money or deposits it in court."" Again Section 60

declares that the mortgagor is entitled to redeem after the principal money has become payable under the contract of mortgage. These provisions

of the law point to the conclusion that the right of redemption accrues when according to the contract of the parties the mortgage-money has

become payable, and is paid, or tendered, or when it is satisfied from rents and profits, when such is the mode of payment indicated by the

contract. Prior to the date when Act IV of 1882 came into force, it was held in several cases in this Presidency that when a day is fixed for the

payment of the debt by a contract of mortgage, and nothing more appears, the presumption is that the day is fixed for the convenience of the

debtor and that the mortgagor may pay the debt at an earlier date, Dorappa v. Mallikarjunudu 3 M. H. C. R. 363, Keshava v. Keshava I. L. R 2

M 45 and Mashook Ameen Suzzada v. Marem Reddy 8 M. H. C. R, 31.

On the other hand it was held by the Bombay High Court in Vadju v. Vadju I. L. R 5 B 22 and in the cases cited therein, that the general

principle as to redemption and foreclosure is that in the absence of any stipulation express or implied, to the contrary, the right to redeem and the

right to foreclose are co-extensive and that where there is a stipulation to pay a mortgage-debt in ten years, the mortgagor could not redeem at an

earlier date. The English law on the subject is explained in 2 Fisher''s Law of Mortgages, 3rd Ed., p. 729. The observations of the Privy Council in

Prannath Roy Chowdry v. Rookeu Begum, 7 M. I. A, 355 are to the same effect. In Brown v. Cole, 14 SimonReports 427, it was laid down that

a person could not redeem before the time appointed in the mortgage-deed, although he tenders to the mortgagee both the principal and interest

due up to that time. Having regard to Section 60 and Section 62 of the Transfer of Property Act, the legislature appears to have adopted the

principle that in the absence of a stipulation to the contrary, the presumption in that the right to redeem and the right to foreclose arise at the same

time and that when a date is fixed for payment of the mortgage-debt and the mortgagee cannot foreclose earlier, the mortgagor also cannot redeem

before the appointed time.

Looking to the terms of the instrument of mortgage in the case before us, they provide for the mortgagee paying himself the debt from the rents

and profits of the estate and for the surrender of possession when the debt is so paid off. The event on which the obligation to surrender is made

by the parties to depend is the realization of the principal money and interest by the mortgagees themselves from the rents and profits of the

mortgaged property and the possession by the mortgagees until that event occurs is of the essence of the transaction. The transaction, then, is a

vivum vadium in which no time is fixed for redemption but the party is left to pay himself the sum for which the estate is pledged out of the rents and

profits of the estate. The result is that upon the facts found no right to eject or redeem had accrued at the date of the suit.

The decrees of the Subordinate Judge must be reversed and that of the District Munsif restored. The respondents will pay appellant''s costs in

this and the Lower Appellate Court.