MOHAMMAD ISHAQ KHAN Vs. RUP NARAIN SINGH

JUDGEMENT

(1.) This is a plaintiffs appeal and arises out of a suit for redemption of mortgage dated 17th. June 1867.

(2.) The plaintiffs are the transferees of the defendants second party who were the original mortgagors. The defendants first party represent the original mortgagees.

(3.) The plaintiffs case was that owing to an increase in the income of the property mortgaged usufructuarily, the mortgage money has paid itself and there is a surplus of Rs. 410-5-2 in favour of the plaintiffs. They accordingly ask for possession and for the said amount of money as surplus due to them. The defence was that there was no increase in the income of the property mortgaged; on the other hand, there was a decrease in it and there was a document of further charge and the plaintiffs could not redeem without paying the amount due on that document also. In the mortgage deed there was a stipulation that a part of the estimated income of the property would be taken towards a part of the interest and the balance of Rs. 7 a year would be paid by the mortgagors. As to this, the plaintiffs allegation was that the sum of Rs. 7 a year was paid up to 1290 F, and thereafter it was not necessary to pay this sum because the income from the property increased by more than Rs. 7 a year. The lower appellate Court has held that it is a fact that the mortgagors paid Rs. 7 a year up to 1290 P.