RAGHUNANDAN RAI Vs. RAGHUNANDAN PANDE

JUDGEMENT

(1.) This appeal arises out of a suit for the redemption of a mortgage made on the 20 of December, 1865. It was a usufructuary mortgage and it provided that the usufruct should be appropriated in lieu of interest, and that the principal amount secured, viz., Rs. 375, would be paid on the last day of Jeth, 1280 Fasli (1873).

(2.) The plaintiff instituted the present suit on the allegation that the defendant had cut down trees existing on the mortgaged property, that the value of the trees cut down by him exceeded the amount of the mortgage, that the mortgage had thus been discharged and that a further sum was payable to him by the defendant. He accordingly claimed possession of the mortgaged property and the further sum which he alleged to be due to him. In the alternative he prayed that should the court find any sum to be due by him a decree for redemption should be made conditional upon his paying that sum to the defendant.

(3.) The suit was resisted on various grounds. It was denied that any trees existing on the land which belonged to the, mortgagor had been cut down, but it was asserted that the trees cut down were the trees of a grove planted by the mortgagee after the mortgage. It was also alleged that there was a subsequent mortgage effected in 1886 by the mother and guardian of the plaintiff, and that under that mortgage a large sum was due to the mortgagee and the payment of this sum was a condition upon the performance of which redumption could take place. A further plea was raised to the effect that under a contract between the plaintiff and the defendant the defendant had planted trees and that when redemption took place compensation should be made for the value of the trees.