NARAYANA JOIS v. ALAMELAMMA — 1971 DIGILAW 323 (KAR)

( 1 ) THE defendant in original suit 637 oi 1964 on the file of the First Munsiff, mysore, is the appellant in this second appeal. The plaintiffs who are two in number instituted the above suit originally in the Court of the Subordnate judge, Mysore in 1963. The suit was thereafter transferred to the file of the First Munsiff, Mysore, by virtue oi the provisions of the Mysore civil Courts Act, 1964. The first plaintiff executed a usufructuary mortgage deed in favour of the defendant on 25-9-1951 for a sum of Rs. 3,000 offering the plaint schedule house as security therefor. Later on she sold the house in favour of plaintiff-2. Both the plaintiffs instituted the above suit lor redemption of the above mortgage, it is not disputed that under the mortgage deed only a sum of Rs. 283 was paid in cash to plaintiff-1. ( 2 ) THE balance of the amount was allowed to be retained 'by the mortgagee for the purpose of discharging certain earlier debts which plaintiff-1 had incurred from one Nagarathnamma and one Y. P. Krishna Jois. The plaintiffs instituted the suit for redemption since the defendant did not allow redemption by private negotiations. The defendant in his written statement contended that the suit was premature and not maintainable since plaintiff-1 who had executed a further mortgage in respect of the very same property in favour of the defendant for a sum of Rs. 1000 on 6-9-1953 could not redeem the suit mortgage alone without redeeming the second mortgage also. In support of the above plea, the defendant relied on the recital in the second mortgage deed dated 6-9-1953 to which reference will be made later on at the appropriate stage. While admitting that he had not discharged the debt due to Nagarathnamma, the defendant pleaded that he had paid a sum of Rs. 1000 to Y. P. Krishna Jois, and, therefore, he was entitled to recover under the suit mortgage a sum of rs. 1283. The trial Court framed several issues in the suit. After hearing the parties it dismissed the suit holding the suit as being premature. The plaintiffs preferred an appeal against the judgment and decree of the learned munsiff in Regular Appeal No. 202 of 1967 on the file of the Civil Judge, mysore. That appeal was allowed and the suit for redemption was decreed. After hearing the parties it dismissed the suit holding the suit as being premature. The plaintiffs preferred an appeal against the judgment and decree of the learned munsiff in Regular Appeal No. 202 of 1967 on the file of the Civil Judge, mysore. That appeal was allowed and the suit for redemption was decreed. ( 3 ) THE lower appellate Court held that only a sum of Rs. 283 was due under the mortgage. It directed that the defendant should also render accounts with regard to the profits he might have derived from the suit house. Aggrieved by the judgment and decree of the lower appellate Court, the defendant has preferred this second appeal. In this second appeal, three questions arise for consideration : (i) Whether the suit for redemption of the mortgage which was executed on 26-9-1951 was maintainable without the plaintiffs redeeming the second mortgage which was executed on 6-9- 1953; (ii) Whether the defendant had discharged the debt due to Y. P. Krishna Jois and whether he is entitled to recover the sum paid to Y. P. Krishna Jois from the plaintiffs; and (iii) Whether the defendant is liable to render accounts with regard to the profits and rents realised from the suit property. ( 4 ) SRI K. S. Venkatasubbaiah, the learned Counsel for the appellant, urged that in view of the recital in the second mortage deed dt. 6-9-1953, it was open to the defendant to insist upon the consolidation of the two mortgages, dt. 25-9-1951 and 6-9-1953, and to require the plaintiffs to redeem botl. the mortgages simultaneously. He pleaded that in view of the said recital the suit filed by the plaintiff for the redemption of the suit mortgage alone was liable to be dismissed. In support of his argument he placed reliance on the provisions of S. 61 of the Transfer of Property Act (hereinafter referred to as the Act ). S. 61 of the Act reads as follpws:"61. A mortgagor who has executed two or more mortgages in favour of the same mortgagee shall, in the absence of a contract to the contrary, when the principal money of any two or more of the mortgages has become due, be entitled to redeem any one such mortgages separately, or any two or more of such mortgages together. A mortgagor who has executed two or more mortgages in favour of the same mortgagee shall, in the absence of a contract to the contrary, when the principal money of any two or more of the mortgages has become due, be entitled to redeem any one such mortgages separately, or any two or more of such mortgages together. "the above section was enacted by the amending Act 20 of 1929 which substituted the earlier section which read as follows:"a mortgagor seeking to redeem any one mortgage shall, in the absence of a contract to the contrary, be entitled to do so without paying any money due under any separate mortgage made by him, or by any person through whom he claims, on property other than that comprised in the mortgage which he seeks to redeem. " ( 5 ) BEFORE the Act was enacted in India, under English law which was being followed by some Courts in India the position was that a mortgagee could insist that all the mortgages executed by the mortgagor in his favour under which monies had become due should bo redeemed simultaneously by the mortgagor. In such a case redemption of only one such mortgage was not permissible. The principle of equity which governed the said view was that "a person who seeks equity must do equity". But by enacting S. 61 of the act as it originally stood, the said view of English law was amended by taking away the right of the mortgagee to insist upon the redemption of all the mortgages executed by the mortgagor in his favour simultaneously when the properties mortgaged were different under the various mortgages. ( 6 ) THERE was however some difference of opinion amongst High Courts even after the coming into force of the Act on the question whether when the mortgages executed by the mortgagor in favour of the mortgagee were in respect of the same property, the mortgagee could insist upon simultaneous redemption of all the mortgages or not. In order to set at rest the doubts expressed with regard to the above legal position in some of the decisions of the High Courts in India, S. 61 of the Act was amended by amending Act 20 of 1929 substituting the present section for the old section. In order to set at rest the doubts expressed with regard to the above legal position in some of the decisions of the High Courts in India, S. 61 of the Act was amended by amending Act 20 of 1929 substituting the present section for the old section. A reading of the preesent section would show that unless there is a contract to the contrary, the mortgagor would be entitled to redeem any one of the mortgages even when he has executed two or more mortgages in respect of the same property in favour of the same mortgagee. It should be remembered that under the provisions of S. 60 of the Act, any kind of restriction which is imposed by agreement of parties which would be in the nature of a clog on the equity of redemption would be void. Under s. 60 of the Act, the mortgagor has been given a statutory right to redemption and any agreement to the contrary would be void. But S. 61 of the act modifies to some extent the rule contained in S. 60 of the Act. It lays down that if there is no agreement to the contrary even when two or more mortgages are executed by the mortgagor in favour of the mortgagee, the mortgagor would be entitled to redeem any one of them but if there is a contract to the contrary, such a right would not be avaliable to the mortgagor. Inthe latter case the mortgagee can insist upon simultaneous redempition of all mortgages which have become due. ( 7 ) IN order to appreciate the contention of Sri Venkatasubbaiah, it would be necessary at this stage to refer to the relevant recital in the second mortgage deed dt 6-9-1953. The said document is in Kannada. The said recital when translated into English reads as follows:"i shall repay the mortgage amount within a period of three yeara. In the event of my default in doing so, I shall pay the principal and interest due under this mortgage before I pay you the amount due under the above usufructuary mortgage. " ( 8 ) TO put it in other words what the parties to the deed agreed under the second mortgage was that within a period of three years i. e. , 6-9-1956 the second mortgage would be redeemed. " ( 8 ) TO put it in other words what the parties to the deed agreed under the second mortgage was that within a period of three years i. e. , 6-9-1956 the second mortgage would be redeemed. In the event of the mortgagor not doing so, she would pay the amount due under the second mortgage before she redeemed the first mortgage. The question for consideration is whether the above clause can be construed as a contract to the contrary which would take away the rights of the mortgagor under S. 61 of the Act. It may be mentioned here that a period of six years was fixed for redemption of the suit mortgage executed on 5-9-1951 and a period of three years was fixed under the second mortgage which was executed on 6-9-1953. The second part of the recital extracted above only indicated an undertaking on the part of the mortgagor to pay the amount due under the 2nd mortgage before the first mortgage was redeemed, but it cannot be understood as an agreement that the mortgagor would not be able to redeem the first mortgage without redeeming the second mortgage also. If the parties intended that the mortgagor should be debarred from redeeming the first mortgage alone without redeeming the second mortgage the recital should have been more explicit. Nothing prevented the parties from incorporating such a term in the deed. This question has been considered in same of the decisions which are cited before me. ( 9 ) THE first decision is that of the High Court of Allahabad in Ganga Rai v. Kirtarath Rai, IL. R. 33 All. 393. That was a decision rendered before S. 61 of the Act was amended. The facts of that case were that two persons mortgaged certain properties on 187p: in 1883 ore of the mortgagors executed a mortgage comprising in part the property mortgaged in 1879 and in part other property, in favour of the same mortgagee. This latter mortgage contained a stipulation that the mortgagor would redeem it before redeeming the mortgage of 1879. Certain properties comprised in the first mortgage alone were sought to be redeemed. This latter mortgage contained a stipulation that the mortgagor would redeem it before redeeming the mortgage of 1879. Certain properties comprised in the first mortgage alone were sought to be redeemed. In the circumstances it was held by the High court that the mortgagors were not precluded by the covenant in the second mortgage from redeeming the first, in another case decided by the High court of Madras, namely, Pyari Bibi v. Andi Ranga Charier, AIR 1956 Mad. 691 , a similar question arose for consideration. In that case the plaintiff who had acquired equity of redemption under a sale deed excutcd by the person claiming under the mortgagor instituted a suit for redemption of a mortgage. After the said mortgage was executed in favour of the mortgagee the mortgagor had executed another simple mortgage in respect of the same property and in that document it was stated that the mortgagor would pay the morgage money due under the second mortgage along with the money due under the first mortgage. The question for consideration was whether the plaintiff could redeem the earlier mortgage alone without redeeming the second mortgage also. The High Court of Madras on those facts held that the term in the second mortgage dead by which the mortgagor undertook to pay the money due under the second mortgage along with the money due under the first mortgage, did not amount to an agreement which debarred the mortgagor from redeeming the first mortgage without redeeming the second. It was held that the agreement to pay the money due under the second mortgage along with the money due under the first mortgage did not amount to saying that the first morgage and the second mortgage would be simultaneously redeemed. In coming to that conclusion the High court of Madras relied on the decision of 1he High Court of Allahabad in ganga Rai's case (1 ). ( 10 ) THE facts of the case on hand are almost similar to the facts of the two decisions referred to above. It should be remembered thai S. 61 of the Act was enacted to confer a benefit on the mortgagor. ( 10 ) THE facts of the case on hand are almost similar to the facts of the two decisions referred to above. It should be remembered thai S. 61 of the Act was enacted to confer a benefit on the mortgagor. The Legislature while enacting the said provision probably had in mind the amount of prejudice that would be caused to the mortgagors if the mortgages were allowed to insist on consolidation of all the mortgages executed in their favour by the mortgagors and to insist upon redemption of either all or none relying upon the rule of equity which had been evolved before the Act came into force. In order to deprive the mortgagor the benefit of S. 61 of the Act, it is necessary to find out whether the recitals lead to one and the onlv conclusion, namely, that the mortgagor is thereby debarred from exercising his right of redemption of the first mortgage without redeeming the second. If the language of the recital is either not clear or equivocal, the construction that should be placed on that should be one which would enure to the mortgagor for whcse benefit Section 61 of the Act was enacted. Viewed from that angle. I am of the opinion that the recital on which the defendant in this suit is relying upon cannot be construed as one amounting to saying that the mortgagor agreed not to redeem the suit mortgage until the second mortgage was redeemed. The recital only extended the time for payment of mortgage money due under the second mortgage without curtailing the right of the mortgagor to redeem the first mortgage without redeeming the second. In the above view of the matter, i am of the opinion that the first contention of the defendant should fail. ( 11 ) THE next contention urged on behalf of the defendant is that the Court below was wrong in holding that the defendant had not discharged the debt due to Y. P. Krishna Jois. In the circumstances of this case, I think it is not open for the defendant to raise such a plea. It is brought to my notice that in an earlier suit, Original Suit 23 of 1961 to which plaintiff-1 and the defendant were parties, it w'as held that the defendant had not paid any amount to Y. P. Krishna Jois on behalf of plaintiff-1. It is brought to my notice that in an earlier suit, Original Suit 23 of 1961 to which plaintiff-1 and the defendant were parties, it w'as held that the defendant had not paid any amount to Y. P. Krishna Jois on behalf of plaintiff-1. The judgment in that suit Is marked as Ext. P-3 in this case. In the circumstances, the defendant cannot be permitted to reagitate the same question again. His plea is barred by the principles of res judicata. ( 12 ) THE last question urged by Sri Venkatasubbaiah is one regarding the liability of the defendant to render accounts It should be remembered that in this case the amount which the defendant agreed to lend under the suit mortgage was Rs. 3000. Actually he has been found to have advanced only rs. 283 to plaintiff-1 under the mortgage. If the mortgagee had advanced the entire sum of Rs. 3000 which he had undertaken to pay, probably he would have been well within his right to urge that in view of the recital in the deed, namely, that the rent of the property should be adjusted against the interest payable on the mortgage amount and to plead that he was not liable to render accounts in the light of S 77 of the Act. In this case the position is not so. He has advanced only a sum of Rs. 283 and he has failed to advance the rest of the amount. In those circumstances, I think the provision of S. 77 of the Act would not be attracted at all. No other point was urged on behalf of the appellant. ( 13 ) IN the result, this appeal fails and it is dismissed with costs. --- *** --- .