Arumugam Pillai vs Periasami and Another

We agree with the Subordinate Judge that the mortgage of 1867 could not be proved, inasmuch as it was not registered, but we do not consider

that the previous mortgages of 1856 and 1860 were altogether extinguished by the mortgage of 1867. They were no doubt consolidated in that

mortgage. But when that mortgage is found to be inoperative owing to non-observance of the registration law, the two previous mortgages can be

revived for the purpose, at least, of showing that the possession of the defendants is that of mortgagees of the plaintiff, the mortgagor. If this

relationship is established between the parties, the plaintiff has clearly a right to redeem the earlier mortgages as his right of redemption has not

been lost through the sixty years'' bar of limitation. This is the principle laid down in Kunhi Kutti Nair v. Kutty Maraccar 4 M.H.C.R. 359 and

followed again in Unnian v. Rama ILR 8 Mad. 415 and we do not think it has been departed from in the case of Krishna Pillai v. Rangasami Pillai

ILR 18 Mad. 462 . In this latter case, the learned Judges would not allow a mortgage that had not been pleaded and that had only been admitted

in other proceedings to be set up in lieu of the plaint mortgage when that failed. But that is not the case here. The plaintiff pleaded the two previous

mortgages, upon which he now wishes to rely, and the second issue had reference to their existence and genuineness and was accordingly framed

in the plural number, showing that all the three mortgages were considered by the Court of First Instance. Indeed, the finding of the District Munsif

is that the mortgages, again in the plural number, set up by the plaintiff were valid and binding as against the defendants. If then the Subordinate

Judge should find that the two previous mortgages, viz., those of 1856 and 1860 are genuine and valid either by independent proof or by

admissions of the defendants or their predecessors in title, we think the plaintiff is entitled to redeem them. We, therefore, reverse the decree of the

lower Appellate Court and remand the appeal for re-hearing on the issue above indicated and the other issues arising in the case. If a decree for

redemption should follow, it will be left for the Subordinate Judge to determine what amount should be paid by the plaintiff to the defendants as the

mortgage amount. The sums due on the mortgages of 1856 and 1860 are Rs. 316 and Rs. 35, respectively. But the amount due according to the

inoperative mortgage of 1867 is Rs. 655, and we observe that the plaintiff has offered to pay this larger amount.

As we have allowed the second appeal on the ground stated it is unnecessary for us to determine the other point raised as to the interest of the

defendants in the property being in any case the limited interest of a mortgagee and therefore liable to redemption.

The costs hitherto incurred will abide and follow the result and be provided for in the revised decree.