JAMUNA SINGH Vs. SHEONANDAN SINGH

JUDGEMENT

(1.) This is a Letters Patent appeal from a decision of Wort J., allowing a second appeal and decreeing the plaintiff's suit. The suit out of which these proceedings arise was brought by the plaintiff to recover a sum of money said to be due on a mortgage bond.

(2.) The claim was based upon a covenant to pay which was said to be in the bond. The learned Munsif who tried the case at first instance substantially decreed the claim, but on appeal the learned Subordinate Judge reversed the decision of the trial Court and dismissed the claim. In the view of the learned Subordinate Judge there was no covenant to pay in the mortgage bond in question.

(3.) In second appeal, Wort J. was of opinion that there was a covenant by the mortgagor to pay within the meaning of Clause (a) of Section 68(1), T.P. Act, and he accordingly reversed the decision of the lower Court and restored the decree of the learned Munsif. The only question to be decided in this appeal is whether the mortgage contains a covenant by the mortgagor to repay the sum advanced. The material portions of the mortgage are as follows: We have, on taking Rs. 425 by way of rehan money paying no interest, let out in rehan, and pledged the whole and entire one bigha of kaimi raiyati nahdi kasht land lying in mauza Aunta, which is owned and possessed by us, together with all the rights and interest appertaining thereto for a term of five years from Asin 1334 to Bhado 1338 Fasli to Mt. Chahautra Kuari.... Now, we have on receipt of the said whole and entire rehan money put the said rehandar in possession and occupation of the property let out in rehan hereunder. It is desired that the rehandar should enter into possession and occupation of the property let out in rehan hereunder, cultivate or get it cultivated and appropriate the entire produce of the property covered hereby as profit of her rehan money and remuneration for labour and her right as rehandar. Then follows the most important term: When the term of this deed will expire in the month of Bhado 1338 Fasli, then at that time the executant on paying the entire mortgage money will get back the deed and the rehan will be redeemed. In ease of non- payment, this deed with all the above conditions will precisely remain intact and hold good till the payment of the said rehan money, that is, for nine years from 1334 to 1342. When we shall pay the said rehan money we shall pay it towards the end of Bhado of any year.