HAFIZ ABDUL BASIT Vs. ABDUL ALIM

JUDGEMENT

(1.) This is an appeal brought by the plaintiff against a judgment and decree of Mr. A. N. Bhanot, Subordinate Judge, Delhi, dated the 24th February 1947, dismissing his suit for possession and for mesne profits.

(2.) The facts which have given rise to this appeal are rather complicated but it is only necessary to give some of the relevant facts. The house in dispute which bears No. 2181 was purchased by Abdul Alim defendant No. 1 and his two brothers Abdul Hafiz and Abdul Matin who are not parties to the present proceedings. On the 26th July 1928 Abdul Alim mortgaged his share of the house and some other property to Mohammad Saeed for Rs. 5,000/-. This mortgage was with possession the terms of which are given in a Full Bench decision of the Lahore High Court which is printed at page 51 of the supplementary paper book and they are as follows : "I have now mortgaged with possession the entire aforesaid property for Rs. 5,000/-. I agree to pay profit at the rate of Re. 1/- per cent, per mensem and the mortgage-money within two years.....Having removed my proprietary possession over the mortgaged property I put the mortgagee in possession thereof by executing a separate lease for Rs. 50/- on account of profit on the mortgage-money. The conditions are: 1. I will pay profit to the mortgagee accord ing to lunar months and secure receipts from him. 2. I will pay the principal mortgage-money in the lump within the period specified above any time I like and redeem the mortgaged property.

(3.) If I fail to pay the amount of profit monthly and it falls in arrears for three successive months. I will pay it to the mortgagee at the rate of Rs. 1/4/- per cent, per mensem instead of Re. 1/- per cent, per mensem from date of the first default till its entire payment. In case of non-payment of the profit for three successive months the mortgagee shall be entitled either to cancel the period specified in the deed and recover in supersession of the agreement the entire amount of the mortgage-money and profit due to him in the lump in the first place from the aforesaid mortgaged property and in case of deficiency from me and my other movable and immovable property together with costs of the Court or to maintain the period specified in the deed and recover only the entire profit in arrears by that time at the rate of Rs. 1/4/- per cent, per mensem together with costs of the Court from me and my property of every description.