Authored By : Ernest Edward Fletcher, Maurice Smither

Ernest Edward Fletcher, J.

1. This is an appeal by the plaintiff from a decision of thelearned Additional District Judge of the 24-Pergunnahs, dated the 19th January1915, affirming the decision of the Munsif of the first Court at Alipur. Theplaintiff brought the suit for redemption. It is admitted that the plaintiffspredecessor was the mortgagor and the defendant No. 1 was the mortgagee. Theequity of redemption has not been foreclosed or put an end to either by theacts of the parties subsequent to the mortgage or by an order of the Court. Onewould have expected, therefore, that a case for redemption had clearly arisen,because one of the elementary rules of equity is that once a mortgage always amortgage. The Courts of Equity have always held that a mortgagee should not be allowedto obtain any undue advantage by his mortgage except the amount of theprincipal, interest and costs due on his mortgage. It is not necessary to gointo the cases on this point. In the present case, however, the learned Judgeof the lower Appellate Court has held that the mortgage is an anomalousmortgage within the meaning of Section 98 of the Transfer of Property Act andthat, therefore, no right of redemption subsists. I am not prepared, as atpresent advised, to agree with the view of the learned Judge that Section 60 ofthe Transfer of Property Act does not apply to an anomalous mortgage. I aminclined to think that Section 60 applies to all mortgages. But be that as itmay, the question in this case is whether the learned Judge of the lower AppellateCourt was right in coming to the conclusion that the mortgage was an anomalousmortgage. The document before us is stated to be a kat kobala, which I am toldmeans a mortgage by way of conditional sale. A mortgage by way of conditionalsale is clearly not an anomalous mortgage within the meaning of Section 98 ofthe Transfer of Property Act. The document itself seems to be an usufructuarymortgage within the definition contained in Section 58(d) of the Transfer ofProperty Act. In this case, the mortgagee was put into possession to receivethe usufruct of the property in lieu of interest and, therefore, in that viewthe mortgage clearly comes within the meaning of Section 58(d). The contractthat, if the mortgagor should fail to pay the rent to the landlord, themortgagee should be entitled to enforce the kat kobala and that the kat kobalashould be treated as a deed of absolute sale obviously is a clog on the equityof redemption. It is not necessary to go into the authorities on this point.They have been cited in the case of Srinivasa Aiyangar v. Radhakrishna Pillai22 Ind. Cas. 54 [LQ/MadHC/1913/225] : 38 M. 667 : 14 M.L.T. 547 : (1914) M.W.N. 81 : 26 M.L.J. 47.We do not really want an authority that a condition of that nature does notnullify the rest of the deed, namely, that it is a mortgage and further thatthe mortgage provided that, when the principal money would be paid off in onelump sum, the mortgagee would return the property, The condition of forfeitureor the transaction becoming an absolute sale in the event of the mortgagorfailing to pay the rent is clearly void. In that view, the learned Judge of thelower Appellate Court ought to have made an ordinary decree for redemptiondirecting the usual account to be taken of what was due to the mortgagor on thefooting of the mortgage security. The present appeal is, therefore, allowed andthe case is remanded to the lower Appellate Court for the learned Judge thereto take an account of what is due to the mortgagee on the footing of thesecurity bond and upon ascertaining the amount due, he should fix a date withinwhich the money ought to be paid and the redemption made; and on theplaintiffs failure to do that, he should direct that the plaintiffs right toredeem shall be extinguished. In taking the account, the learned Judge willalso consider the other mutter raised by the plaintiff, namely, whether therent was paid out of the additional land made over to the mortgagee. Theappellants will get their costs in this Court. The mortgagee will be entitled,according to the ordinary rule in a redemption suit, to add to their securitythe costs incurred by them in the Courts below.

Maurice Smither, J.

2. I agree.

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Badal Molla vs.Chemai Mondal and Ors. (19.03.1917 -CALHC)