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Issues Involved:
1. Whether the appellants can redeem the earlier mortgages based on Ext. F being a mortgage by conditional sale. 2. Whether the appellants can redeem the earlier mortgages treating Ext. F as a pure mortgage without possession. Detailed Analysis: Issue 1: Redemption Based on Ext. F as a Mortgage by Conditional Sale 1. Context and Arguments: - The appellants argued that Ext. F, a hypothecation bond, was a mortgage by conditional sale and had worked itself out as a sale, giving them the right to redeem the earlier mortgages (Exts. XI and XII). - The learned Advocate General contended that even if the right to claim the amount due under Ext. F was barred by limitation, the right of redemption of the earlier mortgages remained unaffected. 2. Legal Framework and Interpretation: - The Transfer of Property Act (T.P. Act) was not statutorily applicable in Travancore but its principles were followed. - Section 58(c) of the T.P. Act defines a mortgage by conditional sale, requiring the transaction to have the semblance of a sale initially. - The court examined whether Ext. F satisfied the conditions of Section 58(c). It was noted that Ext. F was styled as a "Sthreedhana Eedadharam" and was executed for 14,000 Fanams by Meeran Pillai in favor of his daughter and her husband. 3. Judicial Precedents and Analysis: - Previous cases such as Velandy Vadhiar v. Sankarapandian Mudaliar and Padmanabha Pillai v. Umamaheswara Iyer were referenced, which followed the principles of the T.P. Act to determine if a transaction was a mortgage by conditional sale. - The court emphasized that a transaction must initially appear as a sale to qualify under Section 58(c). Ext. F did not meet this criterion as it was essentially a mortgage with a condition that treated it as a sale upon non-payment, which was deemed a "clog on the right of redemption." 4. Conclusion: - The court concluded that Ext. F was not a mortgage by conditional sale and the condition for it to work out as a sale was invalid. Therefore, the appellants could not redeem the earlier mortgages on this basis. Issue 2: Redemption Treating Ext. F as a Pure Mortgage Without Possession 1. Legal Provisions and Limitation: - Article 119 of the Travancore Limitation Act (similar to Article 132 of the Indian Limitation Act, 1908) provided 12 years for recovery of money charged on property. - The right to recover the money due under Ext. F was barred by limitation, but the right to redeem the mortgages (Exts. XI and XII) was not barred, as per Article 136 of the Travancore Limitation Act (similar to Article 148 of the Indian Limitation Act, 1908). 2. Arguments and Interpretation: - The learned Advocate General argued that the appellants, as puisne mortgagees, had a right under Section 91 of the T.P. Act to redeem the earlier mortgages, and this right was not barred by limitation. - The court examined whether a mortgagee whose right to recover the mortgage amount was barred by limitation still retained an interest in the property sufficient to claim redemption under Section 91(a) of the T.P. Act. 3. Judicial Precedents and Analysis: - Cases like Jokhu Bhunja v. Sitla Baksh Singh and Varaha Devaswom v. Ummer Sait were discussed, where time-barred debts charged on property were allowed to be tacked on during redemption. - The court distinguished between a mortgagee in possession and one not in possession, emphasizing that a mortgagee not in possession and whose right to recover the mortgage amount was barred by limitation did not have a subsisting interest in the property. 4. Conclusion: - The court held that a mortgagee without possession and whose right to recover the mortgage amount was barred by limitation could not be considered as having a subsisting interest in the property. Therefore, the appellants could not redeem the earlier mortgages treating Ext. F as a pure mortgage without possession. Final Judgment: The appeal was dismissed with costs, affirming that the appellants had no right to redeem the earlier mortgages based on either argument.
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