KANHAYA LAL Vs. TULSI PERSHAD

JUDGEMENT

(1.) This is a second appeal from the decision of the learned Additional District Judge of Aligarh. The facts of the case are complicated. They deal with the transfer between a large number of parties of the rights arising out of a mortgage, the date of which is unknown, but which mortgage is admitted by the parties. It is unnecessary for me to detail at length the various dealings in this matter. Eventually however one Kanhaya, the plaintiff, became sole possessor of the mortgagor rights in this old mortgage and he became the owner of three-fourths of the mortgagee rights as well.

(2.) The one-fourth of the mortgagee rights outstanding was held by one Tulsi Ram, who is the defendant. Kanhaya Lal brought a suit for redemption of the one- fourth share held by Tulsi Ram. The plaintiff was met with the defence that he could not redeem this one-fourth share without redeeming also one-fourth share of a mortgage dated 1874 entered into between the same parties. The defendant produced the second mortgage, and the learned Judge of the trial Court came to the conclusion that the defence must succeed, and that the plaintiff must redeem both the mortgages. The learned additional District Judge dismissed the appeal with a slight variation. The second mortgage included a small portion of extra land as security, and he therefore ordered that the plaintiff should pay somewhat less, basing the amount upon a rateable value of the two proper-ties mortgaged. Mr. Panna Lal, on behalf of the appellant, says that a wrong construction has been placed upon the mortgage deed of 1874. He says there is no tacking of the one mortgage upon the other, nor is it correct to read the contract as being an undertaking by the mortgagor to repay both the sums of money at one and the same time. Mr. Panna Lal has directed my attention to the case of Kesar Kunwar V/s. Kashi Ram [1915] 37 All. 634. He says that that case is in his favour and that according to it he ought to be allowed to redeem the first mortgage without redeeming the second. In my view however that case is distinguishable, for nowhere in that case was there a contract between the parties that the mortgage money on both mortgages should be paid at one and the same time. It only provided that the amount of the second mortgage should be paid first, and it would have been open to the mortgagor to redeem the first mortgage at any time he liked thereafter. In this case the words used in the contract are these We shall repay this money along with the amount of the (previous) mortgage." Further, the document goes on to say that the second mortgage is tacked upon the first. It expressly uses the appropriate words to constitute tacking. Mr. Girdhari Lal Agarwala, on behalf of the respondent, relies upon Section 61, T. P. Act, and a decision of this High Court reported in . As. regards Section 61, T. P. Act, it enacts that a mortgagor may redeem any one mortgage without paying money due under a separate mortgage in the absence of a contract to the contrary. Here, in my opinion, there is a clear contract to the contrary. As regards the case quoted by Mr. Agarwala, I do not think that it is in point. Mr. Panna Lal argued that it" was impossible to tack a simple mortgage on to a usufructuary mortgage. In this case the first mortgage was a usufructuary one, and there is no doubt that the second loan was advanced, not on the basis of a usufructuary mortgage, but as a simple mortgage. Mr. Panna Lal however is unable to Show me any authority to support his view, and apart from authority I can see no reason to assent to his contention that it is impossible to tack a simple mortgage upon a usufructuary mortgage. If the parties wish so to contract, I do not see any reason why they should not do so. I am satisfied that it was an absolute condition of the con tract that the two principal amounts should be paid together, and that one should not be paid without payment of the other. The parties having chosen to enter into that contract they ought to be bound by its terms. I agree with the judgment of the learned Judge of the Court below and dismiss this appeal with costs.

(3.) Leave to take this matter to Letters Patent appeal is refused.