BRIJ LAL SINGH Vs. BHAWANI SINGH

JUDGEMENT

(1.) This second appeal arises out of a suit for redemption of a mortgage of the 2 August, 1867 and the circumstances under which it was brought are as follows: The predecessors-in-title of the plaintiffs borrowed money from one Kharagjit deceased, and as security there for, hypothecated their share in the village of Badhaula. The mortgage provided that if the mortgagors failed to re-pay the money borrowed in Jeth 1275 fasli, the mortgagee should be at liberty to take possession of the mortgaged property. Default was made in payment of the mortgage debt and the mortgagee took possession of the mortgaged property. Later on, namely, on the 3 July, 1874, a further mortgage to secure a small sum was executed by the mortgagors in favour of Kharagjit. In that document, it is recited that the sum of Bs. 98, was duo by the mortgagors to Kharagjit and the executants thereby agreed to pay interest on that amount at the rate of Rs. 2 per cent, on demand. In order to secure the amount, the mortgagors hypothecated their share in the village in question in favour of the mortgagees, and then follow the covenant upon which the arguments in this case are mainly based. The covenant is as follows: "We shall re-pay the amount due under this bond, before payment of the mortgage money and redemption of the mortgage" (i.e., the earlier mortgage). The suit, out of which. this appeal has arisen, was brought for redemption of the mortgage of the 2 August, 1867 alone, and the defence set up was that the mortgagors were bound to pay the amount due on foot of the subsequent mortgage of the 3 of July 1874 along with or before payment of the moneys due on foot of the earlier mortgage of the 2 August, 1867.

(2.) The Court of first instance decreed the plaintiffs claim but upon appeal the learned Additional District Judge reversed its decision, holding that upon the language of the document of the 3 of July 1874, the mortgagors were bound to satisfy the amount of that mortgage before they could insist upon redemption of the earlier mortgage.

(3.) The case before us has been argued at considerable length and ably, and numerous authorities have been cited to us. I do not think it necessary to review these authorities at length. I think that the learned Additional District Judge rightly decided the appeal before him. It is contended by Dr. Tej Bahadur on behalf of the appellant that the case is governed by the decision of a Bench of this Court in the case of Bhartu V/s. Dalip A.W.N. (1906) 278 : 3 A.L.J. 672. That case at first sight appears to have a close bearing upon the case before us, but it will be observed on closer scrutiny that in the judgment of myself and my brother Knox, care was taken to distinguish it from a case such as that with which we are now dealing. It was held in that case that upon the true construction of two documents, one being a usufructuary mortgage and the other a simple mortgage, there was no consolidation of the two mortgages and that the mortgagor was, therefore, competent to redeem the first mortgage without redeeming the second. In our judgment we observed: "It may be that if the parties to mortgage transactions determine and agree so to consolidate mortgage securities as to preclude the mortgagor from redeeming one without redeeming the other, their contract in that regard would be enforced. But in this case we are unable to discover that there was any such clear and distinct contract entered into between the parties as obliged the mortgagor to redeem both mortgages at the same time." And later on: "There is an express provision in the later deed that the mortgaged land should not be redeemed unless the mortgagor paid the amounts which had been ear- marked in the earlier passage as being the two sums, namely, one of Rs. 1,000 secured by a bond of the 17 of May, 1881, and the other the further advance of Rs. 500 (which was secured by a second mortgage of the 17 of June 1881). From this we gather that the parties contemplated that the mortgagor should be at liberty to redeem the later mortgage on payment of the two sums secured by it, namely, Rs. 1,500. If he was so at liberty to redeem that mortgage at any time, there is no reason why he should be precluded from redeeming the earlier mortgage by payment of the amount secured by it."