SUNDAR LAL Vs. SHIB NARAIN

JUDGEMENT

(1.) IN this case the suit was by the respondent, mortgagor, to redeem a mortgage of the 1 of September 1876, This mortgage was for Rs. 200. He claimed redemption on payment of Rs. 100 only on the ground that the balance of Rs. 100 which was payable with interest at 18 percent, per annum had become time- barred because of a lapse of time. The mortgagee contended that the amount actually due to him was Rs. 678.80 the principal and interest under the terms of the mortgage and a further sum of Rs. 50 which be had spent out of his own pocket in keeping the mortgaged property in repairs. The Munsif agreed with the contention of the defendant-mortgagee and allowed the amount of mortgage- money claimed by him plus Rs. 20 on account of repairs. The plaintiff went up CO appeal and the learned Judge of the lower Appellate Court has, purporting to follow the case of Phul Kuar V/s. Murli Dhar 2 A. 527, 1 INd. Dec. (n. s.) 905, upheld the defendant's contention in part and allowed the mortgagee the principal amount of mortgage-money together with interest on Rs. 100 for 12 years only, apparently on the ground that the suit for recovery of Rs, 100 and interest thereon was barred by time. IN our opinion the learned Judge sterns to have totally misunderstood the nature of the mortgage-deed which the plaintiff sought to redeem. The mortgage commences with the recital that the mortgagor mortgages the shop in lieu of Rs. 200 to the mortgagee. It then goes on to say that he has removed his own possession and put the mortgagee in possession, the mortgagee being at liberty to keep it in his own possession or to let it to tenants. Then the mortgage goes on to say that the interest on Rs. 10 out of the mortgage-money is to be set off against the rent of the shop and as to the interest on the remaining amount he would pay it at the rate of Rs. 18 per sent, per annum from his own pocket. The mortgage-deed further goes on that when the money is re paid within two years the shop will be redeemed, and in case the money is not paid within two years then the mortgagee will have a right to realise the money from this very shop by suit. It is clear from the above extract that the property was really mortgaged for Rs, 200 but the income of the mortgaged property, being insufficient to meet the interest agreed upon, the mortgagor promised to pay the balance of the interest, that is, interest on Rs. ICO from his own pocket at the stipulated rate. The mortgage being a usufructuary one the mortgagee could not have, as snob, brought a suit for sale. However, leaving this aspect of the question aside, there tan be no doubt that the mortgagor is not warranted in treating this document as being in fact two mortgages. It was one simple mortgage of Rs. 200 on the security of the shop. He was bound to pay the mortgage money which included the whole of the principal and interest due upon it at the time of the suit. The case referred to by the learned District Judge has absolutely no application to the facts of the present case, IN our opinion the decree of the Trial Court was the right one. We, therefore, allow the appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs in all Courts including in this Court fees on the higher scale.