IMAM UDDIN KHAN Vs. BADRI NARAIN

JUDGEMENT

(1.) THIS is an appeal against an appellate order of the Additional Commissioner, Udaipur, dated 10-12-1954, setting aside the order of the Assistant Collector, Nimbahera, dated 30-7-1954, in a case relating to redemption of agricultural land.

(2.) WE have heard the parties and have examined the record as well. The only question involved in the appeal is as to whether the mortgagor is entitled to redeem the mortgage before the expiry of the period fixed in the mortgage-deed. The learned Additional Commissioner relying on a number of decisions has held that according to the terms of the mortgage deed a period of 25 years was fixed for the continuance of the mortgage and hence no redemption can be applied for before the expiry of that period. The learned Additional Commissioner, however, did not consider the fact that the redemption of agricultural land after the enforcement of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act is not to be government by S. 60 of the Transfer of Property Act. According to this section the mortgagor has a right to redeem at any time after the principle money has become due. The right of redemption arises when the principle money secured by the mortgage has become due and may be exercised at any time thereafter, subject of course to the law of limitation. In English Law the mortgagor cannot redeem before the time fixed for payment. Nevertheless, there were a considerable number of Indian cases in which it was held that the time fixed in the deed was fixed for the convenience of the mortgagor and that he could redeem before that time unless there was an express stipulation so the contrary. As observed by Shri D. F. Mullah in his learned commentary on the Transfer of Property Act (1949 edition) "these cases are bad law for the view taken in other cases. That the mortgagor cannot redeem before the time fixed for payment, is confirmed by the decision of the Judicial Committee in Bakhtawar Begum vs. Hussaini Khanam". The cases relied on by the learned Additional Commissioner belongs to this latter category. After the enforcement of Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, the matter has to be governed by item 5, Group D, schedule I of the Act. It lays down that a mortgagor can apply for redemption of land and for redelivery of possession at any time during the pendency of mortgage. No period of limitation is fixed for such an application. It has not been denied before us that at the time when the application in the present case was made the mortgage was pending. The decision of the learned Additional Commissioner is, therefore, clearly untenable. He has, in view of his finding, which we are going to reverse, has not proceeded to examine the question as to whether the redemption should be allowed on payment of the whole or a portion or no payment of the mortgage money. WE would, therefore, allow this appeal, set aside the order of the lower appellate court and remand the case back to him with the direction that the appeal be reheard and decision afresh on the question of mortgage money to be paid for redemption. .