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1953 DIGILAW 19 (KER)

Chothy v. Yesudevan Nadar

1953-02-03

KUMARA PILLAI

body1953
Judgment :- 1. The only question for decision in this second appeal is whether Ex. A is a redeemable mortgage or an irredeemable demise. Plaintiffs brought the suit on the allegation that Ex. A is a mortgage, and prayed for redemption of that mortgage and recovery of possession of the property comprised therein. Defendants contended that although the document was styled as an otti it was an irredeemable demise and that at any rate the plaintiffs were not entitled to ask for redemption in view of the express provision in Ex. A that it would only be open to the mortgagee to ask for the return of the mortgage amount and that the mortgagors would not seek redemption. The courts below concurrently found against the defendants' contention and held Ex. A to be a redeemable mortgage and decreed the plaintiffs' suit. Hence this second appeal. 2. The document is styled a mortgage; and it is clearly seen from the provisions therein that the transaction was a loan given by the mortgagee to the mortgagors charged on the property comprised in Ex. A. A right was also expressly reserved to the mortgagee to ask for the return of the amount. In the circumstances the clause denying the right of the mortgagors to ask for redemption can only be viewed as a clog on the equity of redemption. The case is governed by a Full Bench decision reported in Padmanabha Pillai v. Umamaheswara Iyer,1948 T.L.R. 556. It was held in that case: "The essence of a mortgage is a loan and a redeemable security for the loan; the redemption cannot be negatived by a contract to the contrary. A stipulation against the redeemability of the mortgage is one outside the mortgage contract and is repugnant to it." The rulings relied on by the appellants' counsel viz,. Issac Sait v. Venu Shenoi,13 T.L.T. 970; Raman v. Aiyappen, T.L.J. 404; and Madhava Kurup v. Mariam, 8 T.L.T. 665, have no application to the facts of this case. The decrees of the courts below are, therefore, confirmed and this second appeal is dismissed with costs. Dismissed.