BIJAI SINGHAND; BABUNANDAN Vs. SARBDAWAN SINGH

JUDGEMENT

(1.) This is an appeal in a suit brought for redemption of a usufructuary mortgage made on the 4th of February, 1871, by the father of the respondent Bijai Singh in favour of Ram Din Singh, father of the four appellants. The mortgage was for a term of forty years and was to be redeemed on the day following the completion of that term, hut if the mortgagor failed to redeem on that day the mortgage was to hold good for a second term of forty years. It was also provided that the mortgagor should not be entitled to redeem the mortgage with borrowed money. The mortgage money was paid into court, under Section 83 of the Transfer of Property Act, on the 10th of June, 1911, but the appellants refused to accept it. The present suit was filed on 9th of the September, 1911. The defence was that the representative of the mortgagor was not entitled to claim redemption of the mortgage except on the day following the expiry of the term of forty years. The Subordinate Judge accepted this plea and dismissed the suit. On appeal the District Judge held that the mortgage deed did not show with certainty the dayon which redemption might be effected and that the provision that the mortgagee might retain possession for another forty years In case the mortgagor failed to redeem at the end of the first term was penal and should not be enforced. Accordingly he decreed the claim.

(2.) In this appeal it is contended that the decision of the District Judge is erroneous.

(3.) The date given at the foot of the mortgage is Magh Sudi 14, Sambat 1967, the Fasli year being siated to be 1278. The corresponding date according to the British calendar was the 4th of February, 1871, but is not given in the deed. According to the Fasli or Sambat year the term of forty years expired on the 13th of February 1911, and redemption should have been effected on the 14th of February. According to the British calendar forty years expired on the 3rd of February and redemption should have been effected according to the deed on the 4th of February, The calendar now commonly employed in transactions of this kind is the British calendar, but it is not certain that two rustics, as the mortgagor and mortgagee in the present case were, intended that the term of the mortgage should be calculated according to the British calendar. The deed is written in the Nagri character and seems to have been the production of some village writer of documents. We are unable to say that the deed indicates with certainty the date on which redemption might be effected. But assuming that some date is definitely fixed by the deed for redemption, we are of opinion that the provision in question was designed to prevent redemption, or at all events to hamper (ho mortgagor in such a way as to make redemption almost impossible. It is unnecessary to cite authority for the proposition that a Court of Equity will not permit any device or contrivance designed or calculated te prevent or impede redemption. The appellants rely upon cases in which it has been held that the postponement of the right to redeem till the end of a very long term of years, in one case ninety years, is not a ground for holding that the provision should not be enforced--Muhomed Ibrahim v. Muhomed Abiz Kroshi((1910) 8 Indian Oases 1068. Ram Prasad v. Jagrup (1913) 1O A.L.J.,157. Puran Singh v. Kesar Singh (1907) Punj Rec. C J. No. 39 upon a large class of cases, of which that of Bansi v. Girdhar Lal Weekly Notes 1894 p. 143. is an example, and upon the decision of Griffin, J. in Rambaran Singh v. Ramker Singh (1910) 10 Indian Cases 23. affirmed in L. P. A. No. 73 of 1911.