CHHINGA RAM Vs. NIHAL SINGH

JUDGEMENT

(1.) THIS is a plaintiffs' second appeal in a suit for money which has been dismissed by both courts below.

(2.) THE facts giving rise to this appeal lie within a short compass. THE plaintiff's case was that the defendants respondents borrowed a sum of Rs. 700/-from them on the 20th December, 1951 (the date mentioned toy the learned Civil Judge in his judgment under appeal as 20th October, 1951 is wrong) and had agreed to pay interest at the rate of Rs. 1/8/- per cent, per mensem thereon. As a security for this loan. , the defendants mortgaged a 'bara' belonging to them (and which is fully described in the document Exd dated the 20th December, 1951) to the plaintiffs. It was further stipulated in this document that if the defendants should fail to pay the entire amount of the loan together with interest due on it at the end of two years from the date of the loan, the plaintiffs would be entitled to take possession of the Bara. THE document containing the terms afore-mentioned was somehow not registered, and, therefore, the plaintiffs instituted the suit, out of which this appeal arises, and claimed a simple money decree for Rs. 700/- as principal plus a further sum of Rs. 378/- as interest at the stipulated rate and Rs. 1/8/- as notice charges, the total amounting to Rs. 1079/8/. THE suit was instituted in the court of the Munsiff Dholpur on the 16th December, 1954.

(3.) THE same view was taken in Sochet vs. Hadayat Ullah (9 ). It was held in this case that a usufructuary mortgage contemplates delivery of the mortgaged property at once, or, as I might put it, as part of the initial agreement by which the security is created and where the mortgagee becomes entitled to take possession of the mortgaged property only in default of payment, such a condition would not be. enough to convert a mortgage like this into a usufructuary mortgage.