Tirugnana Sambandha Pandara Sannadhi and Others vs Nallatambi and Others

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

the ground that no right of rsdemption 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

authorized 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 this contention. It premises a case in which the mortgagee is authorized 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, see Dorappa v. Mallikarjanudu 3 M.H.C.R. 363 Keshava v. Keshava ILR 2

Mad. 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 ILR 5 Bom. 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 Eisner on

Mortgages, vol. II, 3rd Edition, page 729. The observations of the Privy Council in Prannath Roy Chowdry v. Rookea Begum 7 M.I.A. 323 are

to the same effect. In Brown v. Cole 14 Sim. 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

is 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 appellants costs in

this and the lower Appellate Court.