HUSAINI KHANUM Vs. BAKHTAWAR BEGAM

JUDGEMENT

(1.) Ordinarily, and in the absence of a special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right of redemption can only arise on the expiration of the specified period. But there is nothing in law to prevent the parties from makings provision that the mortgagor may discharge the debt within the specified period, and take back the property. Such a provision is usually to the advantage of the mortgagor.

(2.) The father of the plaintiff executed a mortgage by way of conditional sale on the 6th of January, 1830, in respect of 12 villages in favour of the predecessor in title of the principal defendant; and there was at the time of execution a contemporaneous agreement "that the sale would be cancelled on payment of the amount of consideration in nine years," In a suit brought on the 6th of January, 1899, for. redemption the High. Court held on the construction of the contract that the suit was not barred, as the right to redeem only arose on the expiry of the nine years.

(3.) Held, by the Judicial Committer, that the case must be decided, not on the construction of the contract, but on the case made by the plaintiff on the pleadings, which was that she was entitled under the agreement to redeem the property within the period of nine years, and by the statement of account produced with the plaint which showed that the mortgage debt was actually satisfied under the contract on the 4th of September, 1838; and that being so the right to redeem then accrued, and the whole suit was therefore barred, not having bean brought within 60 years from that date [article 148 of schedule II of the limitation Act, XV of 1877.