JAGANNATH PRASAD TULSIRAM Vs. KANTI PRASAD BATTILAL

JUDGEMENT

(1.) THIS appeal principally raises the question as to the right of the mortgagee to bring the mortgaged property to sale, the contention being that the mortgage in suit is a purely usufructuary mortgage in spite of the circumstance that the mortgagor had covenanted to pay the mortgage money by a certain date. Material facts are as follows : plaintiffs' claim for the recovery of the mortgage-money amounting to rs. 23,615-9-0, was based on a mortgage-deed dated 6-12-1946 for Rs. 21,000/ -. Under the terms of this mortgage-deed (Ex. P-16) the mortgagors had agreed to pay interest every month at Annas 8 per cent per month on the mortgage amount of Rs. 21,000/-, the method of paying the same being by execution of a. rent-note: in mortgagee's favour for the amount equal to interest. The mortgagors further agreed to pay the principal amount by instalments spread over 10 years, first instalment payable at the end of first year being Rs. 3000/- and later on by instalments of Rs. 2000/-every year. The mortgagors further bound themselves not to transfer the mortgaged property either by mortgage, sale or gift. In case the amount of any instalment was not paid in due time it was open for the mortgagees, under the terms of the deed, to recover the amount in accordance with law. The document further provided for proportionate reduction of rent-cum-interest on payment of a full sum of Rs. 1000/- at any time. The mortgagors were liable to pay house-tax, water-tax and electric charges and he was also responsible for carrying out repairs and in case the mortgagees were required to pay the same due to their default the burden of that amount and interest thereon at 1 per cent per month would also be upon the mortgaged houses and that the same would be paid along with instalments. The mortgagors agreed not to mortgage the mortgaged property elsewhere for a period of one year and in case they did they were liable to pay interest for the first full year. There was also an indemnity clause.

(2.) HAVING regard to the aforesaid terms of the mortgage-deed question raised was whether the mortgagees had the remedy to bring the property to sale for realisation of first instalment of Rs. 3000/- together with seven instalments of Rs. 2000/- each falling due in subsequent years as also interest on the entire mortgage-money at the contract rate.

(3.) THE trial Court held that the mortgage being a combination of simple and usufructuary mortgages the plaintiffs had such a right and, rejecting other contentions raised by the defendants, decreed the claim of the plaintiffs together with further interest which had become due till the date of the decree. The total amount of decree passed was for Rs. 25,143. 31 np. A preliminary decree for sale was accordingly passed in usual terms.