JEETMAL Vs. RUGHNATHSEE

JUDGEMENT

(1.) THIS second appeal of the defendants arises out of a suit filed against them by the respondents for payment of mortgage money and sale of the property mortgaged under a mortgage deed Ex. P-1 dated the Chaitra Shukla 13th Samwat 1998, executed by Bastichand, father of the appellants for Rs. 1413/- After reciting that Rs. 1415/- was found due to the mortgagee on taking account of the past dealings between the parties, the deed of mortgage contains the following stipulations which were agreed upon between the parties and which are relevant to the contention in this appeal : - (1) That the said amount will be paid with interest at 12 annas per cent per month. (2) That as a security for payment of the above sum, three pattasud houses situated in Mohalla Meharwara of Jalor belonging to the mortgagors, a description of which was given in the deed and which were already in possession of the mortgagees will continue to remain in their possession. (3) That the rent of the house recovered by the mortgagees would be applied towards payment of the interest on the mortgage money. (4) That the amount of interest that would remain unpaid out of the rent of the house will be debited to the mortgagors. (5) That at the time of redemption, the mortgagors will pay the principal sum secured together with the amount payable under stipulation (4) and then redeem the houses.

(2.) THEN follows the description of the houses followed by the following further stipulations : - (6) That the above mentioned houses are mortgaged. (7) That the mortgagors will pay the mortgage money on demand and redeem the houses and that on default, the mortgagees in whose favour the deed is executed will be entitled sue. (8) That the mortgagees will be entitled to carry out necessary repairs etc. and the amount spent on them will be paid with interest at the aforesaid rate at the time of redemption.

(3.) THE latest decision on the question is one reported in A. I. B. 1950 Assam, 18 wherein a number of authorities have been discussed and his Lordship Ramlabhaya J. has expressed himself in the following words : "where there is an express undertaking to pay money contained in a deed of mortgage, even though the mortgage is with possession, it is not an out and out a usufructuary mortgage. It partakes of the character of a simple mortgage also and is thus converted into an anomalous mortgage being a simple cum usufructuary mortgage. An undertaking or a promise to pay money or rather the personal covenant is found in this document side by side with the right of the mortgagee to enjoy and possess the lands on payment of land revenue. Wherever there is a personal covenant in a mortgage it implies that the mortgagee has a right to bring the property to sale. "