LALA MAKKHAN LAL Vs. KISHUN LAL

JUDGEMENT

(1.) THE facts which have given rise to this appeal are as follow? On the 15 of July 1868 the predecessors-in-title of the plaintiff and defendant second party executed a usufructuary mortgage in favour of Makkhan Lal, defendant first party. On the 19 of July 1860 the same mortgagors executed another mortgage in favour of Makkhan Lal, aforesaid, to secure a further advance of Rs. 300 on the same property. It was, however, agreed that in case interest was not paid annually the mortgagee could, if he so desired, sue to recover the money due on the second mortgage. It was also agreed that the first mortgage would not he re deemed without the redemption of the second mortgage being effected. THE present suit was brought by the plaintiff-appellant for redemption of the mortgage of the 15 of July 1868. THE prior mortgagee pleaded in defence that the plaintiff must, redeem the second mortgage of the 19 of July 1869 also. THE First Court held that the plaintiff had a right to redeem the first mortgage only. THE defendant first, party appealed and the plaintiff raised objections that he was to pay Rs. 34 only for redemption and not Rs. 61 as ordered by the First Court. THE learned Judge of the lower Appellate Court has held that the condition entered in the second mortgage that the plaintiff was to redeem, that mortgage also before he could redeem the first mortgage, operated as a clog on the equity of redemption and could not be enforced and, dismissing both the appeal and the objections, has confirmed the? decree of the First Court. THE defendant first party, the mortgagee, comes here in second appeal and his contention is that, on a true construction of the terns of the mortgage-deed dated the 19 of July 1869, the plaintiff is bound to redeem the second mortgage also before he could redeem the first mortgage and that the dismissal of his suit on the second mortgage is no bar to his claiming that money when the plaintiff seeks to redeem the usufructuary mortgage. THE learned "Vakil for the appellant has relied on the case of Har Pershad V/s. Ram Chander 63 Ind. Cas. 750 : 19 A.L.J. 807 : 3 U.P.L.R. (A) 139 : 44 A. 37 : (1932) A.I.R. (A) 174. It is true that in that particular case this Court held that, the second bond had to be redeemed along with the first usufructuary mortgage-bond. But the difference between that case and the present one is that in that case the second bond was a purely usufructuary mortgage-bond. In the present case, however, as it would appear from the facts which I have given above, the second mortgage was not a usufructuary bond pure and simple. THE money due could be realised by sale also; in other words, the money due under the second bond could be realised notwithstanding the first mortgage bond remained unredeemed. This circumstance distinguishes the present case from the Full Bench case referred to above. THE case clearly in point is that of Kesar Kunwar V/s. Kashi Ram 30 Ind. Cas. 777 : 13 A.L.J. 13 A.L.J. 889 : 37 A. 634 and the two lower Courts have taken a correct view and put a correct construction on the mortgage-deed of 1869. Under these circumstances; this appeal must fail. I dismiss it with costs including in this Court fees on the higher scale.