RAM PERSHAD Vs. KHEM KARAN

JUDGEMENT

(1.) The plaintiff in this case brought an action for redemption of a mortgage dated the 9th of September 1872 and claimed account. The material portion of the mortgage-deed may be rendered as follows: This condition has been agreed upon that whatever may be the income of the property (biswat) mortgaged the mortgagees will be entitled to it (and that) I shall claim no account. As the income (of the mortgaged property) is not sufficient for the payment of the interest which is at the rate of ten annas per cent, per month I shall pay from my own pocket to the mortgagees a yearly sum of Rs. 35.... I shall redeem (the property) whenever I pay the whole of the principal and interest.

(2.) One of the pleas in defence was that the plaintiff, in consequence of the express agreement that he could not claim accounts, was debarred from such a claim. The Court of first instance decreed the suit for redemption but rejected the claim for an account. On appeal the lower Appellate Court came to the conclusion that the plaintiff Was entitled to an account and remanded the case.

(3.) The defendants came to this Court in appeal from the order of remand and their learned Vakil urges that the express agreement entered into between the mortgagor and the mortgagees precludes him from claiming accounts.