WEZARAT HUSAIN Vs. MOHAN LAL

JUDGEMENT

(1.) The facts out of which this appeal arises must be carefully noted. The mortgagor (defendant-appellant No. 1) borrowed a sum of Rs. 99 under a mortgage of his Zamindari property, dated the 14th September 1897. The rate of interest agreed upon was two per cent. per mensem. He paid nothing at all either towards principal or interest, so that in 1904 the debt had swelled to Rs. 450. The mortgagee then threatened to sue to recover this amount, but was persuaded by the mortgagor to give him time and renew the mortgage. Thereupon the mortgage now in suit was executed on the 3rd August 1904. The terms of this mortgage were most favourable to the mortgagor, for he was given 4? years to pay off the debt of Rs. 450, due under the former mortgage, by nine six-monthly instalments of Rs. 50, payable at the end of Pus and Jeth in each year, without interest. The same property was again mortgaged. It was agreed, however, that if default was made in the payment of the instalments, the mortgagee was at liberty to cancel the arrangement as to instalments and could sue for the whole amount and charge interest at 21/2 per cent. per mensem, Default; was made in the very first instalment; it was paid too late. When the money was paid, the mortgagee placed part of it towards the interest that had begun to run, and the balance was credited in reduction of the principal. Later on, various sums were paid; the second item was Rs. 50, paid on the date on which the second instalment was due. The mortgagee, however, apportioned it in the same way as he had done with the first payment, partly to pay off the interest which had accrued, and the balance towards principal. No more instalments were paid, but the mortgagor from time to time made irregular payments of varying sums, all of which were duly credited, and amounted in all to Rs 393.

(2.) The mortgagee plaintiff-respondent now sued to recover the unpaid debt plus interest as stipulated in the mortgage deed. The mortgagor was made defendant No. 1. His wife was joined as defendant No. 2, because her name appeared in the Khewat as owner of the bulk of the mortgaged property. The other defendants were subsequent purchasers or subsequent mortgagees of portions of the mortgaged property. We are not here concerned with them.

(3.) The defense to the suit of the mortgagor was that he had paid eight instalments, i.e., Rs. 400; that the mortgagee s, allegation that he had paid only Rs. 390 was wrong; and that the mortgagee having accepted the instalments, he was not entitled to charge interest, and could only recover RS. 50, due for the last instilment.