RAMESHAR SINGH Vs. SYED HUSAIN AHMAD

JUDGEMENT

(1.) This is a Letters Patent appeal by the plaintiffs against the decree of a learned single Judge of this Court who has ordered that the plaintiffs are entitled to redeem a usufructuary mortgage of 17 February, 1877, on payment of the amount due under a deed of 18 March. 1880.

(2.) The contention for the plaintiff is that he is entitled to redeem the usufructuary mortgage of 1877 without payment of any sum due under the deed of 18 March. 1880. The appellant relies on the case of Kesar Kunwar V/s. Kashi Ram 30 Ind. Cas. 777 : 37 A. 634 : 13 A.L.J. 889, a ruling of 1315. To a certain extent the appellants case might receive support from a Full Bench rulingin S.A. No. 850 of 1926 Lallu Singh V/s. Ram Nandan , decided on 22nd November, 1929, in which it was held that where the second document did not create any charge or mortgage on the property, the usufructuary mortgagor may redeem the prior usufructuary mortgage without paying the debt due on the second document. But in the present case, we are of opinion that the document of 18 March, 1880, does amount to a simple mortgage-deed because the language is as follows: Therefore, in lieu of this Rs. 750 also, we hypothecate the same property and declare that when we shall repay Rs. 899 zar-I-peshgi on account of the mortgage by conditional sale, we shall also pay this Rs. 750 with interest at the rate of eight annas per cent.

(3.) Because of the language used, "we hypothecate the same property" we consider that this deed of 1880 does amount to a simple mortgage. Accordingly the present case differs from the Full Bench case decided in Lallu Singh V/s. Ram Nandan , We are unable to distinguish the present case from the Privy Council ruling reported in Ramarayanimgar V/s. Maharaja of Venkatagiri , In that ruling it is laid down at page 190 Page of 50 M.-[Ed.] as follows: The section which the appellant's Counsel urges as being applicable to the facts of this case is Section 61 of the Transfer of Property Act, which enacts by implication that a mortgagor seeking to redeem shall not be entitled to do so without paying any money that may be due under a separate mortgage or charge, if the latter relates to the same property. Their Lordships are of opinion that these contentions on behalf of the appellant must prevail.