PURNA CHANDRA SARMA Vs. PEARY MOHAN PAL DAS

JUDGEMENT

(1.) This is an appeal on behalf of the first defendant in a suit to enforce a mortgage security, executed by him on the 19th July 1907 for an advance of Rs. 300. It was agreed between the parties that interest would be paid at the rate of 40 aris of paddy on Rs. 100 annually; in other words, that 120 aris of paddy would be paid upon the principal amount each year. It was farther provided that if interest was not paid in kind, as stipulated, the value Section of the paddy would be taken as Rs. 100. There was, however, no time fixed for repayment in the deed as drawn up; the position, thus, was that the mortgagee could enferce the security whenever he liked and the mortgagor could claim redemption whenever he pleased: Fitzgerald v. Mellersh [1892] 1 Ch. 385 Harding v. Tingey (1864) 34 L.J. Ch. 13. Consequently after the deed had been executed, a clause was added to the effect that "the money would be paid, principal and interest, within one year," and, this was separately signed by the mortgagor. It is not disputed that on the 24th July 1907 the mortgagor tendered to the mortgagee the principal together with to the interest which had accrued due up to that date. I The mortgagee declined to accept the money, where-upon the sum was deposited in Court. On the 15th March 1909, the mortgagee commenced this action and I claimed to recover the principal sum together with interest up to the date of suit and pendente lite.

(2.) The Court of first instance overruled this contention and held that the mortgage had been redeemed by the tender of the principal and interest on the 24th July 1907. Upon appeal, the Subordinate Judge has held that the tender was premature and that the plaintiff is entitled to enforce the security.

(3.) On behalf of the appellant, the mortgagor, it has been argued that upon a true construction of the last clause in the deed, it was open to the mortgagor to redeem the security on the 24th July 1907. On behalf of the respondent it has been contended, upon they authority of the cases of Vadiu v. Vadiu (1880) I.L.R. 5 Bom. 22 and Raghubar v. Budhu (1885) I.L.R. 8 All. 95 that the mortgagor was not entitled to redeem before the expiry of one year from the date of the mortgage. It has farther been argued that the right of redemption and the right of foreclosure are co-extensive; and in support of this proposition, reliance has been placed upon the observation of Lord Kingsdown in the case of Prannath Roy Chowdry v. Rookea Begum (1859) 7 Moo. I.A. 323 and upon the cases of Tirugnana v. Nallatambi (1892) I.L.R. 16 Mad. 486 Husaini Khanam v. Husain Khan (1907) I.L.R. 29 All. 471 Sayad Abdul Hak Sardar v. Gulam Jilani (1895) I.L.R. 20 Bom. 677 and Brown v. Cole (1845) 14 Sim. 427. In oar I opinion, the view taken by the Subordinate Judge is clearly erroneous and cannot be supported.