MAHADEO PRASAD Vs. DHIRAJ SINGH

JUDGEMENT

(1.) The question which is in controversy between the parties in. this appeal is whether in a mortgage by way of conditional sale the mortgagor is found to pay interest at the agreed fate from and after the day upon which he should have discharged his obligations under the deed. In other words, is interest during the frost diem period, though not expressly provided for, to be calculated under the particular provisions of the deed at the same rate as that stipulated for during the agreed period of the currency of the bond?

(2.) The position very shortly is as follows: The borrower should have re-paid, but did not re-pay, the principal and interest in December 1907, and though certain- payments of interest were made, the account at the commencement of this action on the 20 of October 1919, showed that Rs. 8,000 principal and Rs. 10,581 interest ware due. This was based upon the calculation that the express stipulation as to interest covered the whole period from the 8 of December 1902, down to the date of the institution of the suit Whilst it is, of course, proper that we should refer to and pay regard to decided cases; the main and important matters for our consideration are the exact terms of the document itself. When those have been considered, it is proper to see whether there are any decided cases so similar in their terms that the canons of construction that have bean used by other Courts will be of assistance to us. If so, it is our duty to avail ourselves of them.

(3.) The document, dated the 8 of December 1902, was executed by Mathura Prasad, who was the father of the defendants (appellants). It stated that he had for a period of five years mortgaged without possession a certain property in lieu of Rs. 8,000 to Raja Dhiraj Singh, that the money was to be applied in satisfaction of a decree, and then follow the words which have given rise to this question: It is covenanted that I shall continue to pay interest at the rate of 11 annas per cent, per mensem annually. In case of default in payment of interest, it shall be a deed to the principal, and I shall pay interest thereon as well at the aforesaid rate. I, or my heirs, or representatives shall have no objection to it, nor shall I mortgage or sell the property to any other person until the payment of the mortgage-money.... In case of breach of promise and expiry of the stipulated period, the mortgagee shall become, the absolute owner of the property mortgaged, and, I, or my heirs, or representatives, shall have no objection whatever.... But if in any year I pay something towards principal in addition to the amount of interest, it will be not less than Rs. 500. I have, therefore, executed these few presents by way of a mortgage-deed by conditional sale, so that they may stand as authority and be of use when required.